Opinion
C092522
05-28-2021
In re W.M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. W.M., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JV136407)
Minor W.M. appeals from the juvenile court's disposition order committing him to the Division of Juvenile Justice (DJJ) following its finding that when W.M. was 17 years old, he committed a lewd and lascivious act upon a child under 14 years old. W.M. argues his commitment to DJJ was an abuse of discretion. We will affirm.
BACKGROUND
A March 2020 Welfare and Institutions Code section 602 petition alleged that W.M. committed vehicle theft (Veh. Code, § 10851, subd. (a)) in count one and a lewd and lascivious act upon a child under 14 years old (Pen. Code, § 288, subd. (a)) in count two.
At the June 2020 contested jurisdiction hearing, the juvenile court heard testimony from an employee of Paradise Oaks Youth Services, a juvenile sex offender group home agency in the Sacramento area. She testified that as she was looking for W.M. and another minor who both "went AWOL" from their group home, she discovered 17-year-old W.M. standing behind a bush, naked, as the other minor, 13 years old, appeared to be either kneeling or crouched down with his mouth on W.M.'s penis. At the time, W.M. was about six feet two inches tall and 290 pounds, and the other minor was about five feet eight inches tall and 130 pounds.
The juvenile court found the lewd act allegation in count two to be true and sustained the petition, dismissing count one in the interest of justice.
At the beginning of the August 6, 2020 contested disposition hearing, the juvenile court explained that it had reviewed a July 2020 social study report prepared by a Sacramento County probation officer, which documented W.M.'s long and troubled past, beginning as early as 2013 with a sexual assault against a seven-year-old child, and two sexual assaults against his five-year-old brother in 2014. The report also explained, inter alia: (a) the facts underlying W.M.'s 2018 battery counts; (b) that W.M. had "lived at eight different placement homes for juvenile sex offenders . . . since May of 2014," having been "terminated" from three of them "due to negative behavior" in April 2015, January 2016, and March 2016; and (c) that W.M.'s behavior "had been poor" at the Paradise Oaks facility even before his March 2020 lewd act with a child under 14—including "attempt[s] to assault staff," "kick[ing] holes in the walls of the home," and "abscond[ing] from the home numerous times"—prompting the facility to consider "termination of [W.M.'s] placement" in February 2020.
In October 2018, W.M. pleaded no contest to the allegation that he committed battery on a school employee (Pen. Code, § 243.6) in March 2018. A separate alleged offense—that W.M. committed an October 2018 battery on school property when he rubbed the chest of a 14-year-old male who weighed 180 pounds less than W.M., told the victim to "take this love like a man, little boy" and then punched the victim approximately six times when the victim resisted—was dismissed with a Harvey waiver. (People v. Harvey (1979) 25 Cal.3d 754.)
The juvenile court heard testimony from one witness, Dr. Krys Hunter, a senior supervising psychologist and program coordinator for the DJJ in the Department of Corrections and Rehabilitation. She explained that the "number one goal" of DJJ's sex behavior treatment program "is to reduce recidivism." In addition to the regular services that all youths in DJJ receive, including "mental health services, education services, [and] vocational services" "to prepare" youth "for reentry into the community," youth in the sexual behavior treatment program participate in a 10- to 12-week "psycho educational . . . class" where they learn about "sex education [and] healthy relationships."
Then, a youth is placed in a "cohort[ ] or group[ ]" with a "max[imum] nine youth, and they [are] assigned a clinician . . . as well as a primary youth counselor and a case work specialist or parole agent." In that cohort, the youth begins "the residential process, which consists of seven stages" of "extremely intense work" to achieve insight into any underlying "trauma that they have themselves undergone," think about the impact of their conduct on direct and indirect victims, learn to "develop how [they are] going to think differently, behave differently, [and] make different choices," "look[ ] at what it is to be a good citizen," and prepare for reentry into society through "role play[ing]" different scenarios of everyday interactions that can lead to negative outcomes.
On cross-examination, Dr. Hunter conceded that her testimony was intended broadly to explain DJJ's sex behavior treatment program to the juvenile court, as she lacked specific information about W.M.'s case. Also, she expressed her opinion that seeing an offender "go behind barbed wires and fences . . . provides . . . victims with . . . justice. . . . We want those victims to have their voice
After cross-examination by W.M.'s counsel, Dr. Hunter answered the juvenile court's inquiry regarding how DJJ "integrated" treatment of a "youth who has sex offender issues . . . but also has . . . aggression issues."
At the end of the hearing, the juvenile court committed W.M. to DJJ, explaining: "[T]he Court is not looking only at the PC 288 offense that was the subject of the trial some weeks ago. I'm looking at a pattern here over a number of years, and I see a pattern of sexual misconduct and aggressive and violent acts toward group home staff and residents of the group home. And that has been going on between 2014 and 2020."
The juvenile court noted the "numerous assaults on group home staff and residents" detailed in the social study report, and observed that "in October of 2018 . . . it began as an attempt at non consensual sexual misconduct. The victim resisted, and then it became an assault, and that's how it was charged."
Thus, "sex offender treatment through all of" W.M.'s "group home stays" "did not work," which made the juvenile court "very concerned for [W.M.'s] safety and . . . health, and . . . the public safety . . . ."
"So [W.M.] is going to turn 18 in a month, and the Court just does not believe that group homes are an option for several reasons," the juvenile court said, including that—under California law as it existed at the time—W.M. could "only remain" at a group home "until . . . he turn[ed] 19." Under that scenario, W.M. would only be "staying in a group home" "for a short period of time, and [the juvenile court] [did not] see having [W.M.] be in his own care and custody with doing outpatient treatment . . . as a viable or realistic option for success, given [his] history
See R.E. v. Superior Court (2019) 42 Cal.App.5th 373, 379-381. With Senate Bill No. 823 (2019-2020 Reg. Sess.), the governing law changed on September 30, 2020, two months after the August 2020 disposition hearing. (See Welf. & Inst. Code, § 208.5; Stats 2020, ch. 337, § 20.)
"And so that le[ft] DJJ . . . as the only possible option, and [the juvenile court] listened carefully to [Dr. Hunter's] description of the program. There were some things she said that were troubling to the Court about the victim's voice. . . . [¶] But what [the juvenile court] was impressed with was her description of their program. It seemed to the Court very well thought out. It ha[d] many components addressing a lot of issues . . . . [I]t reduce[d] recidivism in terms of future sex offender violations from 7 percent . . . to 3 percent. And to the Court, that [was] a significant reduction. [¶] So [it was] for those reasons that the Court [found] that a DJJ commitment [was] warranted."
W.M. timely appealed.
DISCUSSION
I
W.M. argues the juvenile court abused its discretion when it committed him to DJJ, as he "was not the type of criminally sophisticated offender appropriate for DJJ," and "[p]lacement in a local juvenile sex offender treatment facility was an effective, appropriate, and less restrictive alternative to DJJ." The People argue the juvenile court did not err. We agree with the People.
"Because rehabilitation is one of the primary objectives of juvenile court law, our statutory scheme ' "contemplates a progressively more restrictive and punitive series of dispositions starting with home placement under supervision, and progressing to foster home placement, placement in a local treatment facility, and finally placement at the [DJJ]. [Citation.]" ' [Citation.]" (In re N.C. (2019) 39 Cal.App.5th 81, 85 (N.C.).)
" '[T]o ensure the necessity of a [DJJ] placement, there must be evidence "supporting a determination that less restrictive alternatives are ineffective or inappropriate." [Citation.] More importantly in the present case, "there must be [substantial] evidence in the record demonstrating . . . a probable benefit to the minor by a [DJJ] commitment . . . ." [Citation.] That is because [Welfare and Institutions Code] section 734 provides that "[n]o ward of the juvenile court shall be committed to the [DJJ] 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 [DJJ]." ' " (N.C., supra, 39 Cal.App.5th p. 86.)
We review the juvenile court's commitment decision for abuse of discretion. (N.C., supra, 39 Cal.App.5th at p. 85.)
Probable benefit to W.M.
W.M. contends the juvenile court's " 'probable benefit' finding was not supported by substantial evidence," because, inter alia, Dr. Hunter "had no information regarding [W.M.'s] uniquely troubled background and varied treatment needs," and she "promoted" the sex behavior treatment program's "function as a means of retribution against juvenile sex offenders."
Dr. Hunter's lack of familiarity with W.M.'s unique situation did not prevent the juvenile court from "listen[ing] carefully" to her description of DJJ's sex behavior treatment program, which "seemed to the Court" to be "very well thought out," with "many components addressing a lot of issues" with which W.M. appeared to struggle, including the potential need for—in the juvenile court's questioning of Dr. Hunter—"integrated" treatment of a "youth who has sex offender issues . . . but also has . . . aggression issues."
Dr. Hunter also testified about the sex behavior treatment program in In re N.C., wherein the appellate court—confronted with a record that included dueling witnesses for and against DJJ commitment—affirmed the juvenile court's DJJ commitment decision after "acknowled[ing] th[e] conflicting evidence," explaining that a court's "role on appeal is to determine whether the juvenile court's order is reasonably grounded in the record, not to reweigh the evidence in the record." (N.C., supra, 39 Cal.App.5th at p. 87.)
Here, Dr. Hunter was the sole witness at the contested disposition hearing, and the juvenile court gave a reasonable explanation why it found her testimony persuasive. We will not reweigh Dr. Hunter's testimony.
As for W.M.'s contention that Dr. Hunter "promoted" the sex behavior treatment program in retributive terms, we observe that the juvenile court voiced that it was "troubl[ed]" by some of Dr. Hunter's testimony in that regard, indicating that testimony did not affect the juvenile court's commitment decision.
Ineffectiveness of less restrictive alternatives
W.M. contends that "placing [him] in a secure juvenile sex offender program—until he turned nineteen—would have been [an] 'effective', 'appropriate' and 'less restrictive' alternative to DJJ," and that the juvenile court's "finding to the contrary was not supported by substantial evidence and inconsistent with the rehabilitative purpose of the Juvenile Court Law."
We disagree. The juvenile court considered this less restrictive alternative, but found it inappropriate in light of W.M.'s "pattern of sexual misconduct and aggressive and violent acts toward group home staff and residents of the group home" "over a number of years." The facts of W.M.'s March 2020 lewd act on a child under 14, and facts contained in the July 2020 social study report (portions of which are detailed above), provide substantial evidence supporting that finding.
While the record indicates that W.M. provided a Harvey waiver in connection with the resolution of allegations regarding his conduct in 2018, we observe that precluding a juvenile court from considering facts underlying dismissed counts, even in the absence of a Harvey waiver, could frustrate the goal of juvenile justice. (Cf. In re Robert H. (2002) 96 Cal.App.4th 1317, 1329 [rejecting the argument that under People v. Harvey, the juvenile court improperly considered the facts underlying the assault count that was dismissed, as "relevant policies of juvenile court law require that the court consider 'the broadest range of information' in determining how best to rehabilitate a minor and afford him adequate care"].)
Therefore, the juvenile court's DJJ commitment order was not an abuse of discretion.
Senate Bill No. 823 (2019-2020 Reg. Sess.)
In his reply brief, W.M. argues that when considering DJJ commitment, the juvenile court "should have recognized th[e] new direction" that passage of Senate Bill No. 823 "signal[ed]," namely, a legislative "intent to change course and reject antiquated, draconian, [and] rehabilitation concepts," and "followed the Legislature's lead."
With the observation that this bill had not even been passed by both houses of the Legislature at the time of the disposition hearing, we will not discuss the merits of this policy argument, which could have been raised in the opening brief. (See People v. Roscoe (2008) 169 Cal.App.4th 829, 840.)
The August 6, 2020 disposition hearing occurred weeks before our Senate, on August 31, 2020, concurred in Assembly changes to Senate Bill No. 823 (2019-2020 Reg. Sess.). On our own motion, we take judicial notice of the procedural history of the law. (Evid. Code, §§ 452, subd. (c), 459, subd. (a).)
II
W.M. argues that since his commitment to DJJ will require him to register as a sex offender, "because the juvenile court's disposition order . . . should be reversed, its further disposition order, requiring [W.M.] to register as a sex offender, upon his discharge from DJJ, must be reversed as well."
Because we rejected W.M.'s first claim, we likewise reject this claim.
DISPOSITION
The order of the juvenile court is affirmed.
KRAUSE, J. We concur: RAYE, P. J. DUARTE, J.