Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. JJD062303 Hugo J. Loza, Commissioner.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr. and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Clifford E. Zall, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Dawson, Acting P.J., Kane, J., and Detjen, J.
In September 2007, appellant, Joshua H., a minor, admitted an allegation set forth in a juvenile wardship petition (Welf. & Inst. Code, § 602) that he committed a lewd or lascivious act against a child under the age of 14 years (Pen. Code, § 288, subd. (a)). In October 2007, the juvenile court adjudged appellant a ward of the court; declared appellant’s maximum term of physical confinement to be eight years; placed him on probation, with various terms and conditions; and ordered him detained in juvenile hall pending placement. Later that month, appellant was placed at Children’s Home of Stockton, and in December 2007, he was transferred to the “Breaking the Cycle” program (BTC), a residential treatment program for adolescent sex offenders.
Except as otherwise indicated, all statutory references are to the Welfare and Institutions Code.
In May 2010, the Tulare County Probation Department (TCPD) filed a notice pursuant to section 777, alleging that appellant, who was then 18 years old, had violated terms and conditions of probation by “fail[ing] to learn and obey … the rules of the group home and... fail[ing] to participate in a sex offender program.” Also, in May 2010, following a hearing, the juvenile court found the allegations true. In July 2010, following the disposition hearing, the court ordered appellant committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF), formerly known as the California Youth Authority (CYA), and set appellant’s maximum period of physical confinement at three years.
On appeal, appellant contends the court abused its discretion in ordering appellant committed to DJF. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Underlying Offense
The report of the probation officer (RPO) prepared in connection with the 2007 proceedings in the instant case states the following: In July 2007, appellant, who was adopted when he was eight and one-half years old, was 15 years old and living with his adoptive parents and siblings, including his five-year-old adoptive sister, when, during the course of a police investigation of a report of sexual abuse, he told a police officer that on one occasion he had sexual intercourse with his sister and on two other occasions she licked his penis.
Pre-Probation-Violation Background
An RPO filed with the court in December 2008 in connection with a “Post Permanency Review” states the following: Appellant “appears to be responding well to all treatment” at BTC and his “progress... toward alleviating or mitigating the causes necessitating treatment” was “satisfactory.” Appellant had suffered “multiple setbacks in his program” but “each time [he] bounces back, and makes progress in his treatment.” A November 2009 BTC quarterly report describes appellant’s transition to BTC as “smooth” but notes that appellant “does have his ups and downs.” A December 2009 RPO prepared in connection with a post permanency review states that appellant was “responding well to all treatment services provided.”
May 2010 Probation Violation Hearing
Theresa Bolton testified to the following: She is the clinical director of BTC. Appellant violated BTC rules in the following instances: he left the BTC property without supervision for a four-hour period on one occasion; while on BTC property he “wander[ed] off, ” out of the sight of the staff member who was supervising him, on approximately two occasions; on two occasions, once with another resident, and once with a staff member, he engaged in “grooming, ” a “technique offenders use in order to sexually act out” that can consist of talking to another person about engaging in sexual activity or “do[ing] a favor for someone” in exchange for a “sexual favor”; and he wrote down the license plate number of a female former staff member and the telephone numbers of “multiple” staff members.
Kathleen Messina testified to the following: She is a licensed clinical social worker (LCSW). She had been appellant’s treating therapist for the previous two and one-half years. Initially, it appeared appellant “was doing well” in treatment. However, in April 2010, after learning there was some “sexual acting out going on, ” BTC staff conducted “a series of interviews within the group, ” as a result of which Messina became aware that over a period of time beginning in approximately February 2009, appellant had engaged in “three verified instances of sexually acting out.” First, appellant admitted he and another boy, Alex, age 16, had mutually masturbated each other and that at Alex’s request appellant had orally copulated him. Appellant also admitted that he and another boy, 17-year-old Taylor, performed mutual masturbation, there was “an incident involving oral copulation[, ]” and Taylor “attempted to sodomize [appellant] with [appellant’s] permission and interest.” Finally, appellant admitted that he approached a third boy, age 15, and asked him “if he could sodomize him” and engage in mutual masturbation. The boy “complied.” All these incidents “appear to be consensual....” In none of them did appellant use force.
Messina opined: “[Appellant] hasn’t conformed to treatment. I think that he was successful in presenting himself as conforming to treatment, but in reality he was acting out for over a year....” Appellant “manipulate[d] and deceive[d] the [BTC] treatment team.” He “is capable of presenting sort of a... dual picture of himself.” He is “opportunistic, ” and “whoever is handy is at risk.” Appellant “wouldn’t … use force to get what he wants, ” but he “could definitely do as he did with [his five-year-old adoptive sister].” Asked if appellant had made “progress” at BTC, Messina responded: “[I]t’s almost as if the progress he made is nullified by the fact that underneath all of that he was acting out.”
Evidence Considered at Disposition Hearing
In the RPO submitted to the court in advance of the disposition hearing, the probation officer stated, “Given the length of time [appellant] has been in treatment coupled with the corresponding time he has been sexually acting out, it is felt he is no longer amenable to treatment.” The probation officer recommended appellant be committed to DJF where, the officer opined, appellant “will have the opportunity to engage in Sex Behavior Treatment Programs as well as continue his education, while in a highly secured setting”; “receive twenty-four hour supervision in a highly structured setting while the safety and security of the community can be maintained”; and receive “the services that he needs to help him become a productive member of society.”
Also submitted to the court was a letter to the TCPD from Messina, in which Messina opined that appellant “remains a High Risk to re-offend in the community. Given that [he] will be turning 19 years old in October 2010, he is no longer a candidate for prolonged treatment in juvenile sex offender programs. In addition, his predatory conduct within the juvenile setting makes him unsafe for placement with younger peers. Therefore, in the interests of [appellant] and the greater community, I am recommending that [appellant] be offered intensive treatment within a confined setting in an age-appropriate facility.”
It appears Messina based her assessment of appellant’s risk of reoffending on a particular test, the Juvenile Risk Assessment Scale (JRAS). Messina stated that appellant’s act of “commit[ting] a sexual offense while in treatment, ” “raise[d] his risk level to High Risk, according to the JRAS.”
Angela Crisanto, Psy.D., conducted a psychological evaluation of appellant, and in her report stated the following: Appellant “has been diagnosed with Sexual Abuse of Child (perpetrator), Depressive Disorder NOS, Borderline Intellectual Functioning, and Antisocial Personality Traits.” He “is considered to be a high risk for future sexual misconduct and perpetration.” Appellant “tends to blame others for his behavior. He expressed that his sister must have been previously molested and that she initiated their first sexual encounter. He further blamed his adoptive mother for being too strict and not allowing him out of the house to engage in intercourse with his girlfriend. The minor reported that the other residents at [BTC] were attracted to him and initiated sexual contact with him. He expressed a belief that staff should have moved him from this environment prior to the sexual acts taking place. The minor deflects responsibility for all of his recent sexual misconduct. He does not appear remorseful for his actions.”
Dr. Crisanto “recommended that [appellant] be placed in a secure and locked facility such as [DJF] where he may be afforded sex offender treatment while protecting the community from further offending.”
Timothy Zavala testified he is an LCSW and for the previous seven years has been the “director of the adolescent sexual responsibility program in Tulare Youth Services Bureau....” He has conducted two assessments of appellant’s “level of risk to reoffend, ” the first in 2007, before the instant offense, and the second “just recently....” Based on “all the testing that happened, ” Zavala “determine[d] that if appellant was “released into the community at this time, ” he “would be at moderate risk to reoffend.”
The remainder of this section of our factual and procedural background statement is taken from Zavala’s testimony.
Zavala had “questions and concerns” about BTC’s recent conclusions regarding appellant’s lack of progress “because you can’t take it all back.” He opined: “If at some point they’ve determined that he is complying with treatment and that he seems to be internalizing the concepts that are being taught to him in treatment, you can’t just take it all back. Either he gets it or it doesn’t.”
Zavala criticized Messina’s reliance on the JRAS. He stated the following: Appellant’s instances of sexual conduct at BTC “can’t be considered... offense[s] by the definition of the JRAS.” In addition, the JRAS “is indicated for up to 18, ” and appellant “was 18 and younger at the time of those incidents.” Finally, the JRAS “clearly indicates that you have to be four years difference from the alleged victim and [in] none of those situations was there a four-year difference.” At BTC, appellant engaged in sexual activity with his “peers, ” who “were all over sexualized males with sexual offense histories who were sexually acting out together.” If “[y]ou put young men in that kind of a situation without proper supervision[, ]... the likelihood that they’re going to sexually act out is very high.”
Appellant was “remorseful” and “very genuine in expressing his concern for [the victim of the instant offense] and making a statement that he had negatively impacted her life for the long term, and expressing some kind of desire to perhaps fix that in some way.”
Zavala opined that Dr. Crisanto’s characterization of appellant as a “‘high risk offender’” was “completelty inaccurate” because it was based on information provided by BTC.
Zavala noted that according to the BTC quarterly reports on appellant’s treatment that he reviewed, appellant was “making breakthroughs, ” and “the fact that he sexually acted out with peers in the group home after that does not completely negate all of the treatment that was done and the progress that was made.”
Commitment to DJF would not be an “appropriate resolution.” For an adolescent male to be “successful in his treatment, ” he should “have some type of contact with his support system; ideally family.” However, a DJF commitment “would completely separate him from his family even further than he already is, and essentially, just take away the opportunity to even try to build some type of support system for him....”
Appellant was “very open” in his recent meeting with Zavala, who thought that if he could continue to meet with appellant, appellant “could make further progress[.]” The Adolescent Sexual Responsibility Program provides services to minors who are “long term” in the Tulare County Juvenile Detention Facility, where appellant was housed, and Zavala himself could meet with appellant if appellant was “given more time in custody while waiting disposition.” However, Zavala acknowledged that “that program is not available to [appellant]” because “he is too old for it[.]”
Juvenile Court’s Ruling
The court noted that (1) the 2007 offense of which appellant stands adjudicated “is the only delinquent behavior that he has before the court”; and (2) although appellant’s sexual misconduct at BTC “obviously concern[s] [the court], ” such misconduct is “not... extremely unusual” in that “these things happen” where “you have a group home full of kids who were sent there because of inappropriate sexual behavior.” However, “those two factors... would not be the basis for placing this minor at [DJF] because... the minor’s delinquent behavioral history is not significant enough to justify that. [¶] So... the bottom line here is that all the circumstances pertaining to the offense, pertaining to the minor, are not such that it would warrant a [DJF] commitment. The question is going to be is there an option … that is viable that would be appropriate.”
The court further stated: “[G]iven [appellant’s] history, both the circumstances that relate to the offenses, circumstances relate to [appellant], ... in my view this was not a [DJF] case, ” and “but for the issue of age, ... placement in the long-term program would be the appropriate thing to do with the case plan that Mr. Zavala recommends.” The prosecutor responded that commitment to the “long-term program” would be “an illegal sentence” because “the program requirements require that [appellant] must be able to complete it before [age] 19.” At that point, the court continued the disposition hearing in order to “get a report” on the age requirements of the program in question.
On July 30, 2010, the TCPD submitted a report to the court which stated the following: The “Youth Correctional Center Unit” (YCCU) is a program that consists of four “phases, ” each eight to ten weeks long, and includes “Sex Offender counseling.” However, the program “does not have the ability to accept any minor who can not complete the program by age 19.”
At the continued disposition hearing on July 30, 2010, the court stated that although YCCU and group homes offer treatment for sex offenders, “the problem is his age places him in a situation where he cannot complete either of those two programs.” The court concluded: “... the Court has considered all the available options, the options of group home placement, the options that we have [at] the local level, the long-term program, and as I’ve indicated several times, ... if [appellant] would be eligible to participate in [the long-term program], I would order that. [¶] However, given the rules and regulations … this minor does not qualify for that program, and having reviewed the probation report, the SCIU report of the psychologist, the recommendations of the psychologist, having reviewed the report of Mr. Zavala and the testimony presented by Mr. Zavala, it appears to me that this minor is in need of a sexual [offender] treatment program, but in my view, unfortunately, there’s not one at the local level that this minor would qualify for. And so the alternative that we have is the [DJF], and so the Court is selecting that because I think it’s the only viable program available.”
DISCUSSION
Appellant contends the court abused its discretion in ordering DJF commitment. We disagree.
In In re Carl N. (2008) 160 Cal.App.4th 423 (Carl N.), the court provided an overview of the applicable standard of review and the legal principles governing commitment to CYA: “The decision of the juvenile court to commit a juvenile offender to CYA may be reversed on appeal only by a showing that the court abused its discretion. [Citation.] ‘[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered.’ [Citation.]” (Id. at pp. 431-432.)
“As the court explained in In re Michael D. (1987) 188 Cal.App.3d 1392, 1395, ‘[a]n 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. [Citation.] 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.’” (Carl N., supra, 160 Cal.App.4th at p. 432.)
“The statutory declaration of the purposes of the juvenile court law is set forth in section 202. [Citation.] Before the 1984 amendment to section 202, California courts consistently held that ‘“[j]uvenile commitment proceedings are designed for the purposes of rehabilitation and treatment, not punishment.”’ [Citation.] California courts treated a commitment to CYA as ‘the placement of last resort’ for juvenile offenders. [Citation.]” (Carl N., supra, 160 Cal.App.4th at p. 432.)
“However, ‘[i]n 1984, the Legislature replaced the provisions of section 202 with new language which emphasized different priorities for the juvenile system.’ [Citation.] Section 202, subdivision (b) (hereafter section 202(b)) now recognizes punishment as a rehabilitative tool. [Citation.] That subdivision provides in part: ‘Minors under the jurisdiction of the juvenile court who are in need of protective services shall receive care, treatment, and guidance consistent with their best interest and the best interest of the public. 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.’ (§ 202(b), italics added.)” (Carl N., supra, 160 Cal.App.4th at p. 432.)
“‘Section 202 also shifted its emphasis from a primarily less restrictive alternative approach oriented towards the benefit of the minor to the express “protection and safety of the public” [citations], where care, treatment, and guidance shall conform to the interests of public safety and protection. [Citation.]’ [Citation.] ‘Thus, it is clear that the Legislature intended to place greater emphasis on punishment for rehabilitative purposes and on a restrictive commitment as a means of protecting the public safety.’ [Citation.] It is also clear, as the Court of Appeal recognized in In re Asean D. (1993) 14 Cal.App.4th 467, 473, that a commitment to CYA ‘may be made in the first instance, without previous resort to less restrictive placements.’” (Carl N., supra, 160 Cal.App.4th at pp. 432-433.)
“‘[T]his interpretation by no means loses sight of the ‘rehabilitative objectives’ of the Juvenile Court Law. [Citation.] Because commitment to CYA cannot be based solely on retribution grounds [citation], there must continue to be evidence demonstrating (1) probable benefit to the minor and (2) that less restrictive alternatives are ineffective or inappropriate. However, these must be taken together with the Legislature’s purposes in amending the Juvenile Court Law.’ [Citation.]” (Carl N., supra, 160 Cal.App.4th at p. 433.)
Appellant argues the court abused its discretion in ordering DJF commitment because he is “precisely the kind of ‘unsophisticated, mildly delinquent minor’” who should not be committed to DJF. There is no merit to this contention.
We recognize that “‘“[t]he courts have persistently shown a realistic concern for commingling of unsophisticated, mildly delinquent minors “with the more criminally oriented groups of delinquents committed to California Youth Authority, ” thereby converting them to trained and sophisticated criminals.’”” (In re Teofilio A. (1989), 210 Cal.App.3d 571, 577.) This concern can be traced back to In re Aline D. (1975) 14 Cal.3d 557 (Aline D.), cited by appellant, where our Supreme Court noted that CYA guidelines include the following “‘inappropriate cases’ for commitment[:]... unsophisticated, mildly delinquent youths, ‘for whom commingling with serious delinquents who make up the bulk of the Youth Authority population might result in a negative learning experience....’” (Id. at pp. 564-565.) However, as this court noted in In re Lorenza M. (1989) 212 Cal.App.3d 49, 57 (Lorenza M.), Aline D. “predate[s] the amendment of former Welfare and Institutions Code section 502 (now) § 202” which, as indicated above, “now recognizes punishment as a rehabilitative tool and emphasizes the protection and safety of the public.” (Ibid.)
In Lorenza M., supra, 212 Cal.App.3d 49, the juvenile court ordered a young, mildly delinquent minor committed to the Youth Authority, following an adjudication of vehicle theft, after the court found that such commitment would be of probable benefit and that “‘all local less restrictive programs and forms of custody [would be]... inappropriate dispositions....’” (Id. at p. 52.) This court upheld the disposition. Referring to “the use of punishment as a rehabilitative tool, ” as provided in the 1984 amendment to the Juvenile Court law, and noting that Aline D. predated the amendment, we stated, “whether or not Lorenza is a serious juvenile offender or a ‘criminal, ’ her commitment is consistent with the current purposes of the Juvenile Court Law.” (Id. at p. 58.) The offense of which appellant stands adjudicated was far more serious than the offense committed by the minor in Lorenza M., but even if appellant can be characterized as a mildly delinquent offender, his commitment to DJF, like the CYA commitment in Lorenza M., was consistent with the purposes of the Juvenile Court Law.
In two related claims, appellant also argues that the court abused its discretion because (1) “It is highly unlikely [appellant] will realize any benefit from his commitment to [DJF]”; and (2) he “could benefit from additional treatment at a local program.”
These claims are also without merit. As to the first, we recognize, as appellant points out, that Timothy Zavala opined that DJF was not the kind of “supportive, ” “encouraging, ” and “nurturing” placement necessary for appellant’s rehabilitation. This evidence, however, does not compel the conclusion that appellant could not benefit from DJF commitment. The juvenile court, as trier of fact, reasonably could credit the probation officer’s uncontradicted statements that DJF could provide appellant with educational services, close supervision in a highly structured setting, other services that would benefit appellant by “help[ing] him become a productive member of society, ” and, most significantly in our view, programs for the treatment of sex offenders. Moreover, as demonstrated above, the Juvenile Court Law specifically acknowledges that punishment can aid in a minor’s rehabilitation by holding him or her accountable. Thus, substantial evidence supports the conclusion that DJF commitment would benefit appellant.
As to the second of these claims, we also recognize that some less restrictive placement, if available, could provide some benefit to appellant. This factor however, does not compel reversal. (In re Reynaldo R. (1978) 86 Cal.App.3d 250, 256 [CYA commitment was not an abuse of discretion despite fact that minor’s record justified less restrictive disposition].) There was, as demonstrated above, substantial evidence that appellant could benefit from DJF commitment.
Appellant also argues that the court abused its discretion in ordering DJF commitment because the court did so not because DJF “would be of ‘probable benefit’ to [appellant], ” but “because [the court] believed there was no other choice.” In support of this claim, appellant cites Aline D., where the court stated: “The 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.)
On this point, we find instructive In re Gerardo B. (1989) 207 Cal.App.3d 1252 (Gerardo B.). There, the juvenile court, in ordering the minor committed to CYA, stated, in comments similar to those of the court in the instant case, “‘if I had a ranch, a camp or C.K. Wakefield Program that was in the area of 8 to 9 months or a year there would be no choice in my mind. I wouldn’t even consider... for a moment[]... the California Youth Authority....’” (Id. at p. 1254.) In rejecting the minor’s argument that the juvenile court judge was not fully satisfied that the minor would benefit from a CYA commitment, this court stated: “In our view, the court’s criticized statement was merely a concerned expression detailing the sad state of affairs that has befallen the juvenile justice system, and in particular the system in Fresno County, due to a lack of county funding. This should not preclude his commitment order from being upheld when the order was made based upon a careful analysis of the correct considerations. It is clear that, unlike the court in Aline D., the court did not find a commitment to YA inappropriate; it merely found that a different type of program may have been more appropriate. If two programs are found appropriate and one is found unavailable for whatever reasons, the court should not be hindered in view of the situation before it from choosing the perhaps less desirable program. [Citation.] The court was fully satisfied that Gerardo would benefit by the treatment provided by YA and did not abuse its discretion in committing Gerardo to YA.” (Id. at pp. 1258-1259.)
Here, too, reversal is not compelled by the court’s statements that placement in a “long-term” program, rather than DJF commitment, was the preferred disposition. The juvenile court found that appellant was in need of “sexual [offender] treatment, ” DJF offered a “viable” program offering such treatment, and although placement in a less restrictive setting was also appropriate, and indeed preferable, no such placement was available. Notwithstanding the court’s expressed reservations regarding DJF commitment, the court’s comments, considered in their totality, indicate that the court (1) based its commitment order on careful consideration of the relevant factors; (2) determined that appellant could benefit from DJF, where appellant, in need of treatment for his sexual behavior problems, could receive such treatment; and (3) found that there were no less restrictive alternatives that were both appropriate and available. As in Gerardo B., the court was fully satisfied that appellant would benefit from the treatment provided by DJF.
Finally, appellant contends the court had no authority to commit appellant to DJF because the instant offense is not listed in section 707, subdivision (b) (section 707(b)). We disagree.
Section 731 sets forth orders a court may issue when a minor is adjudged a ward of the court. Included in this list is an order to commit the ward to the DJF “if the ward has committed an offense described in subdivision (b) of Section 707 and is not otherwise ineligible for commitment to the division under Section 733.” (§ 731, subd. (a)(4).) As appellant notes, the instant offense ___ appellant’s violation of Penal Code section 288, subdivision (a)) ___ is not listed in section 707(b).
Section 733 lists categories of wards that shall not be committed to the DJF; subdivision (c) of that section provides that a ward may not be committed to DJF if “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, unless the offense is a sex offense set forth in subdivision (c) of Section 290.008 of the Penal Code.” The instant offense is one of the offenses set forth in subdivision (c) of Penal Code section 290.008. Thus, appellant’s offense does not meet the criteria of wards who may be committed to the DJF in the inclusionary language of section 731, subdivision (a)(4), yet his sexual offense is exempted from the exclusionary criteria of section 733.
Notwithstanding that the instant offense is not listed in section 707(b), we conclude that because that offense is included in Penal Code section 290.008, subdivision (c), the court was not precluded from ordering appellant committed to the DJF. Our conclusion follows from an examination of both statutes.
The language of each statute when read separately appears clear and unambiguous. But, when read together they are inconsistent. If we were to adopt appellant’s interpretation of the two statutes, the language in section 733, subdivision (c) ___ that a youth shall be excluded from the DJF unless the offense is a sex offense set forth in subdivision (c) of Section 290.008 of the Penal Code ___ would have no meaning or purpose. “When two seemingly inconsistent statutes apply, we harmonize the competing statutes and ‘avoid an interpretation that requires one statute to be ignored.’” (Watkins v. County of Alameda (2009) 177 Cal.App.4th 320, 343.)
If we were to find that a ward can only be committed to the DJF if he committed a section 707(b) offense, we would have to ignore the language in section 733, subdivision (c) that includes as an exception to the DJF exclusions a ward who committed a sex offense set forth in subdivision (c) of Penal Code section 290.008. This we cannot do. That language was included in the statute for a purpose, viz., to allow the court to commit a minor to the DJF when the minor has committed an offense listed in Penal Code section 290.008. Therefore, the fact that the instant offense is not listed in section 707(b) did not preclude the court from ordering appellant committed to the DJF.
The issue of whether a minor can be committed to DJF for an offense not listed in section 707(b), but included in the list of offenses in Penal Code section 290.008, subdivision (c) is currently before the California Supreme Court in In re Robert M. (2011) 192 Cal.App.4th 329, review granted April 20, 2011, S191261.
DISPOSITION
The order of the juvenile court is affirmed.