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People v. Y.P. (In re Y.P.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Jan 30, 2020
A156754 (Cal. Ct. App. Jan. 30, 2020)

Opinion

A156754

01-30-2020

In re Y.P., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. Y.P., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J18-01092)

A petition was filed pursuant to Welfare and Institutions Code section 602 alleging that when appellant was a minor, he committed numerous lewd acts on his younger sister (Jane Doe). By the time Jane Doe reported the incidents to one of her teachers and then to law enforcement, appellant was 19 years old. Appellant pleaded no contest to three counts of lewd act on a child under the age of 14 years. After considering less restrictive placements, the juvenile court committed appellant to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ), for a term of five years.

Appellant contends the juvenile court abused its discretion by committing him to the DJJ because there is insufficient evidence to establish a less restrictive placement would be ineffective or the DJJ would be beneficial. We are not persuaded by appellant's arguments and affirm the dispositional order.

I. FACTUAL AND PROCEDURAL BACKGROUND

Because there was no contested jurisdictional hearing, the statement of facts is taken from the probation report submitted to the court for the dispositional hearing. --------

In December 2018, appellant's sister, age 11, reported to her teacher she had been raped by her older brother, appellant, when she was between the ages of four and nine. Jane Doe disclosed her history of abuse after a conversation about physical abuse during an after-school program activity. To gather more information, a police officer and a social worker spoke with Jane Doe in the administrator's office. Jane Doe elaborated she had been sexually assaulted by appellant while they were sharing a room. She asserted the last time she had been sexually assaulted was approximately two years ago, and since her older brother had moved out of the room the assaults had ceased. Nevertheless, Jane Doe was still fearful of her parents leaving her alone with appellant because she believed another sexual assault might occur. At the time of the investigation, Jane Doe was living with her parents and appellant.

Another interview with Jane Doe was conducted by a child forensic interviewer, Griselda Vasquez. Jane Doe first related that when she was four years old, appellant touched her vagina with his palm and, if her pants were on, he would force his hands down her pants and touch her vagina. The touching happened less than five times, occurring when her parents were either in the kitchen or when all of them were sleeping in the family's common room or in the living room. Jane Doe explained her family lived in a two-bedroom apartment with another family. Her family had control of one bedroom where she and her brother shared the only bed while her parents slept on the floor. Jane Doe also told Vasquez when she was approximately six years old, appellant threw her to the ground and "rape[d]" her, explaining while they both had their clothes on, he would "go 'up and down on her.' " She indicated the " 'dry humping' " started when she was four years of age and continued until age six. According to Jane Doe, the " 'dry humping' " occurred three to four different times.

When Jane Doe was six years old, appellant approached her as she slept, removed her clothing and licked her vagina, leaving her " 'wet down there.' " Appellant also removed her undergarments to rub his penis on her vagina and anus. These incidents occurred one to three times. When appellant rubbed his penis on her vagina, her genital area hurt the following day. As she became older, she fled the bed to sleep on the floor with her parents. While Jane Doe was in first grade, appellant penetrated her vagina with his fingers, causing her vagina to hurt the following day. The digital penetration occurred approximately eight times.

Jane Doe's mother, Y.C., admitted she knew about appellant sexually assaulting her daughter a few years earlier but did not report the conduct to law enforcement. She recalled an occasion when she entered the bedroom and saw appellant lying face down on the ground wearing pants and shorts while Jane Doe was sitting on the edge of the bed wearing pants and a blouse. Y.C. could tell something was wrong because Jane Doe was acting strange, and when she turned her son over, his pants were partially down. When she scolded appellant, he asked for forgiveness, stating he did not know what he was doing. As Y.C. bathed Jane Doe, she observed a blood stain in Jane Doe's underwear and assumed appellant had penile-vaginal intercourse with his sister. Jane Doe informed her mother appellant had placed " 'his thing into her thing,' " pointing to her vagina. After Y.C. later found semen on the floor and sheets, she spanked appellant with a belt. She immediately sent him to live with his biological father. Y.C. failed, however, to take Jane Doe to the hospital or report the incident to police because she feared her children would be taken away from her.

Appellant lived with his father for two years, but when Y.C. learned appellant was experimenting with drugs, she allowed him to return to her home where he was given his own room. As a result of this separation, appellant had not sexually assaulted Jane Doe in the two years since his return.

Appellant's stepfather admitted his wife had told him about the incident precipitating appellant moving into his biological father's home.

Appellant admitted he had sexually assaulted his sister. He believed the first assault took place when he was 13 years old and she was six years old. He claimed that initially he did not know what he was doing, and it started out as just a brother and sister playing together. He instigated the conduct in the bedroom they shared by touching Jane Doe's intimate parts and "ended up . . . 'doing what adults do,' " which he said was "sex." Appellant also admitted to rubbing his penis on Jane Doe's vagina but denied ever asking her to perform oral sex on him. Appellant acknowledged touching Jane Doe's vagina over her clothing and under her clothing, digitally penetrating her vagina seven to eight times when he was 13 years old, rubbing his penis on her vagina two to three times, and performing oral sex on her vagina five to six times.

According to appellant, his mother caught him assaulting Jane Doe on two separate occasions. On one occasion, his sister was bleeding from her vagina because he had been rubbing his penis on her vagina and digitally penetrating her. On a second occasion, he was on top of Jane Doe while she tried to stop him by pushing him off and telling him to get off, but he did not stop. Ultimately, appellant took down his jeans and Jane Doe took down her own pants. He laid on top of her for four to five minutes. His mother scolded and spanked him and moved his bedroom to the living room.

When appellant moved back into his mother's apartment "the second time," he admitted assaulting Jane Doe again by rubbing his penis on her vagina. At the time of this incident, he was 14 years old and Jane Doe was seven years old. Appellant also recalled another incident in which he placed his sister's hand on his penis and may have ejaculated.

The Contra Costa District Attorney filed a juvenile wardship petition pursuant to Welfare and Institutions Code section 602, subdivision (a) alleging appellant committed 14 lewd acts on a child under the age of 14 years (Pen. Code, § 288, subd. (a); counts one through thirteen, twenty), three lewd acts by the use of force (id., subd. (b)(1); counts fourteen through sixteen), and three acts of oral copulation on a minor under the age of 18 years (id., former § 288a, subd. (b)(1); counts seventeen through nineteen).

Appellant pleaded no contest to the allegations in counts one through three. Counts four through twenty were dismissed.

Following a contested dispositional hearing, the court declared appellant a ward and committed him to the DJJ for a term of five years pursuant to Welfare and Institutions Code section 731.

II. DISCUSSION

Defendant asserts the juvenile court abused its discretion by committing him to the DJJ because there is insufficient evidence to establish that a less restrictive placement would be ineffective or that the DJJ would be beneficial. We disagree. A. The Juvenile Court's Ruling

At the commencement of the contested dispositional hearing, Willy Sneed from the probation department advised the court that probation "felt it was in the best interest of [appellant], given the services available at the [DJJ], that [he] be committed to the [DJJ]." With respect to less restrictive placements, Sneed indicated "YOTP" (Youthful Offender Treatment Program) was not an option because the program did not provide the kind of treatment appellant needed for rehabilitation, nor was Boys Ranch an option given his age.

Agreeing with the probation department's recommendation, the court determined commitment to the DJJ was the most appropriate disposition because appellant "definitely need[ed] a strong sexual offender treatment program" and because he had "minimized and [did] not understand the danger and gravity of his offense."

In reaching its decision, the court rejected the probation department's "low risk" assessment observing, "I cannot tell you how many times it has come in and said 'low risk,' and I am on the third case of the same offense. They are telling me that it's low risk and, yet, I am now in a case where there is a third offense that they have said it was low risk." As a result, the court did not give "a lot of credence" to the assessment because "I think it's just too dangerous to not give [appellant] the tools he needs to lead a successful life."

Importantly, before concluding commitment to the DJJ was the most appropriate disposition for appellant, the court "really" considered other less restrictive placement options. The court was "very familiar" with the other options—Oakendell and the Children's Home of Stockton. The court had visited both and believed they were "two of the best sexual treatment offender programs around." The court, however, rejected these placements because they were not licensed to accept appellant at age 19 or 20.

The court also considered confinement in county jail with treatment provided by the A Step Forward program, located in the county. But the court's prior attempts to have A Step Forward provide services to jailed individuals had been unsuccessful because, due to lack of resources, the program personnel refused to come to the jail. The court concluded, "I don't have any other options at this time." B. Applicable Principles

Under Welfare and Institutions Code section 725.5, the juvenile court must consider the circumstances and gravity of the offense committed by the minor. In determining how best to rehabilitate a minor and to afford him or her adequate care, the court must consider the broadest range of information. A juvenile court's order may be reversed on appeal only upon a showing the court abused its discretion. Appellate courts 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. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.)

The record must be viewed in light of the purposes of juvenile law. As described in Welfare and Institutions Code section 202, those purposes include rehabilitation, treatment, guidance, punishment as a rehabilitative tool, and protection of the public. (In re Teofilio A. (1989) 210 Cal.App.3d 571, 576 (Teofilio A.).) To that end, the juvenile court considers the probation officer's report and any other relevant and material evidence that may be offered (Welf. & Inst. Code, § 706), as well as the age of the minor, the circumstances and gravity of the offense, and the previous delinquent history (id., § 725.5). The court may also consider the need to hold the minor accountable for his or her actions (id., § 202, subd. (b)) and the community's interest in being protected from crime during rehabilitative efforts (id., subd. (a); In re Lorenza M. (1989) 212 Cal.App.3d 49, 57-58). Courts do not necessarily abuse their discretion in ordering a juvenile to the most restrictive placement before other options have been tried. (In re Eddie M. (2003) 31 Cal.4th 480, 507.) It is error, however, for the juvenile court to fail to consider less restrictive alternatives to a DJJ commitment. (Teofilio A., at p. 577.) C. The Trial Court Did Not Abuse Its Discretion in Committing Appellant to the DJJ

A DJJ commitment is not an abuse of discretion where the record demonstrates "both a probable benefit to the minor . . . and the inappropriateness or ineffectiveness of less restrictive alternatives." (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) Such is the case here. Before deciding to commit appellant to the DJJ, the court considered three less restrictive placements and expressed sound reasons for rejecting them. The court was "very familiar" with Oakendell and the Children's Home of Stockton, noting they had two of the best sexual behavior treatment programs, but rejected both because appellant was too old for these programs which were not licensed to accept appellant at age 19. The court also considered and rejected confinement of appellant in county jail because A Step Forward could not provide treatment while he was in custody. In addition, the probation officer stated neither YOTP nor Boys Ranch was an option because the former did not provide the kind of treatment appellant required and the latter would not accept appellant given his age. In short, none of the five options were viable alternatives to the DJJ.

Moreover, sufficient evidence supported the conclusion that a commitment to the DJJ would result in a probable benefit to appellant. The probation report indicated a commitment to the DJJ would "appropriately hold [appellant] accountable for his inappropriate sexual behavior" and he would benefit from its "intensive seven-stage Sexual Behavior Treatment Program in a secure and structured environment, while continuing his education." The treatment, according to the report, "is a holistic approach to treatment which incorporates the involvement of the family and community, understanding victims' rights, and simultaneously recognizing the individualized needs of every youth." As the court noted, appellant "needs treatment regarding his own offense as being a victim himself. I think that type of therapy is desperately needed so that he will not be a further risk." The court rationally concluded the sexual behavior and treatment program at the DJJ will provide appellant with the rehabilitative treatment he needs, through individual and group therapy, family counseling, and other resources.

The record moreover demonstrates appellant will additionally benefit from the DJJ's structured and secure environment particularly given his parents' inability to exercise control over his behavior. Despite knowledge of appellant's molestation of his sister over an extended period, they did not report him to law enforcement. They also allowed him to discontinue his education in his ninth grade year.

Though appellant claimed he was remorseful, the court found "he has minimized and does not understand the danger and gravity of his offense." To address appellant's minimization, the DJJ has other programs that work in conjunction with the "seven-stage" program, including "Responsibility and Accountability."

In sum, we cannot say the juvenile court abused its discretion in concluding appellant would benefit from a commitment to the DJJ, and that less restrictive placements were either unavailable or were not equipped to offer the necessary treatment appellant requires.

Appellant makes several arguments challenging the court's exercise of its discretion in committing him to the DJJ. He argues the court did not consider potential alternatives to the DJJ, that his confinement there will expose him to violent offenders, the seriousness of the offense does not justify such a commitment, and the court erred in rejecting the probation officer's evaluation he was a low risk to reoffend. Appellant further stresses that during the two-year period after his parents had removed him from the bedroom where he had molested his sister, he had not victimized her. Lastly, he argues there is no evidence regarding the success of the sexual offender program at the DJJ and makes the same argument regarding the high schools to which the DJJ may send him, asserting they have a very low rate of graduation. None of these arguments have merit.

First, the juvenile court did in fact consider potential alternatives to the DJJ including local programs, Oakendell and the Children's Home of Stockton; however, as the court found, these local resources were inappropriate because appellant was too old to be accepted into them. And, according to the probation officer, YOPT or Boys Ranch were not options since they either did not provide suitable treatment or would not accept appellant given his age. Additionally, appellant has failed to identify what other programs or facilities the court should have considered.

Second, we reject appellant's assertion that committing him to the DJJ requires confinement with violent offenders. If we accept this argument, then no minor who has not committed a violent offense could be committed to the DJJ. Likewise, in minimizing the offenses, appellant overlooks that he engaged in very coercive, abusive, and dangerous conduct against a very young victim.

Third, the court was not required to walk in lock-step with the probation officer's finding appellant was a low-risk offender and therefore not a threat to the community. The court had seen numerous low-risk assessments, remarking during the dispositional hearing: "I cannot tell you how many times it has come in and said 'low risk,' and I am on the third case of the same offense. They are telling me that it's low risk and, yet, I am now in a case where there is a third offense that they have said it was low risk." As an experienced jurist, the judge acted well within her discretion in rejecting the reliability of the probation officer's method of evaluating appellant. We also disagree with appellant's claim that the seriousness of the offense is not sufficient to justify his commitment to the DJJ. As we previously described, appellant engaged in very serious conduct against his younger sister. And the court was concerned with providing appellant with the "tools he needs to lead a successful life," which the structure, supervision, and treatment at the DJJ could furnish.

Fourth, appellant's argument he had not victimized his sister during the two years following Jane Doe's report to a teacher is not compelling because during that period, his parents eliminated the opportunity for further sexual misconduct by removing him from the bedroom he had shared with his sister and placing him in the living room at night. Nonetheless, because Jane Doe still feared appellant would molest her, she reported the prior sexual molestations to school authorities and law enforcement.

Fifth, while no evidence was presented regarding the success of the sex offender program at the DJJ, the probation department was not required in its report or in court "to provide indepth information about the [DJJ]'s programs or to preemptively respond to even predictable criticisms of the [DJJ]," absent a challenge by a minor who is subject to commitment. (In re Carlos J. (2018) 22 Cal.App.5th 1, 13.) "Under Evidence Code, section 664, where the probation officer has identified programs of benefit to a minor and provided brief information about the most important programs, it may be presumed the probation officer's recommendation is based on an assessment the programs are available and appropriate. If a minor wishes to dispute the availability or efficacy of particular programs, or to suggest that other conditions at the [DJJ] undermine the programs, the minor must present sufficient evidence to reasonably bring into question the benefit he or she will receive from the adoption of the probation department's recommendation." (Ibid.) Such mandated evidence here was not offered by appellant, and the probation report adequately described the programs from which he could benefit following a risk/needs assessment to determine the specific services.

Likewise, appellant complains the "most recent publicly available California Department of Education records indicate[] the dire state of DJJ's educational system," reflecting low percentages of DJJ students meeting statewide testing standards for 2018. This argument was not presented at the dispositional hearing where the People would have had an opportunity to respond, and we will not consider it on appeal based upon appellant's citation to websites which the juvenile court had no opportunity to review. The issue here is not the percentage of others who have benefited from the DJJ's educational programs. Rather the issue is whether appellant will benefit from the programs. To follow appellant's reasoning to its logical conclusion would mean no minor in need of education may be sent to the DJJ.

Finally, for the first time, appellant argues the record contains no evidence the other programs at the DJJ identified by the probation officer would be beneficial to him. Once again, because appellant failed to raise this objection in the juvenile court, the People had no meaningful opportunity to respond, and the court had no opportunity to further evaluate the efficacy of the other programs. As a result, appellant cannot now raise this objection on appeal.

In reviewing a juvenile court's disposition for abuse of discretion, "It is not the responsibility of this court to determine what we believe would be the most appropriate placement for a minor. This is the duty of the trial court, whose determination we reverse only if it has acted beyond the scope of reason." (In re Khamphouy S. (1993) 12 Cal.App.4th 1130, 1135.) The juvenile court in the instant matter acted reasonably in reaching the conclusion appellant would benefit from the structured programs and services provided by the DJJ and that less restrictive placements were not feasible.

III. DISPOSITION

The dispositional order is affirmed.

/s/_________

Margulies, J. We concur: /s/_________
Humes, P. J. /s/_________
Sanchez, J.


Summaries of

People v. Y.P. (In re Y.P.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Jan 30, 2020
A156754 (Cal. Ct. App. Jan. 30, 2020)
Case details for

People v. Y.P. (In re Y.P.)

Case Details

Full title:In re Y.P., a Person Coming Under the Juvenile Court Law. THE PEOPLE…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

Date published: Jan 30, 2020

Citations

A156754 (Cal. Ct. App. Jan. 30, 2020)