Opinion
A149819
10-17-2017
In re B.R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. B.R., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. J43366)
The juvenile court committed minor B.R. (appellant) to the Division of Judicial Facilities (DJF) after sustaining a charge that he committed lewd and lascivious acts upon a child under age 14. (Pen. Code, § 288, subd. (a).) On appeal, appellant contends the juvenile court abused its discretion in committing him to the DJF. We conclude the record does not contain substantial evidence to support a finding that a placement less restrictive than the DJF is inappropriate or ineffective. Accordingly, we shall reverse and remand for a new dispositional hearing.
The DJF, formerly known as the California Youth Authority (CYA), is overseen by the Division of Juvenile Justice, or DJJ. (In re Jose T. (2010) 191 Cal.App.4th 1142, 1145, fn. 1.) The juvenile court, appellant, and many cases use the term DJJ. We will use the term DJF when referring to what was formerly known as the CYA.
FACTUAL AND PROCEDURAL BACKGROUND
Because the jurisdictional finding results from a plea, we take the relevant facts from the probation report.
In February 2015, appellant, who was then 15 years old, invited a female minor, S.R., to a house party. S.R. had known appellant since middle school. Appellant also invited S.R.'s female friend, K.D., to the party. Appellant's male friend, M.C., picked up both girls at about 8:00 p.m. and drove to the apartment where appellant lived. They planned to proceed to the party from there but never made it.
S.R.'s precise age at the time of the offense is unclear. According to the probation report, she was 15 years old in January 2016, approximately 11 months after the date of the offense.
At the apartment, appellant provided alcohol to the girls and M.C. They were all drinking and eventually found their way into appellant's bedroom to listen to music. S.R. became intoxicated. S.R. told appellant to stop when he grabbed her outer thigh and attempted to sit on a chair with her. She asked when they were leaving for the party. Appellant responded that it was too late to go to the party and put his arms around S.R., who told him to stop.
S.R. stood up and said she wanted to leave. Appellant told her she could not leave, grabbed her shoulders, and sat her down on a chair. He attempted to kiss S.R. She told him to stop multiple times and stated, "no, because you are who you are." S.R. said she was referring to appellant's reputation for having sex with a few of her friends. Appellant then rubbed S.R.'s back and roughly grabbed her buttocks over her dress.
S.R. picked up her cell phone and said her mother was calling. The phone fell to the floor after appellant attempted to grab it. As S.R. bent over to pick up her cell phone, appellant pulled down his pants and exposed his erect penis. S.R. told appellant she needed to leave and told him to stop.
Appellant grabbed the back of S.R.'s head and pulled it toward his penis. Although she resisted, his penis touched her face and mouth. S.R. told appellant she needed to use the bathroom and attempted to leave but was unsuccessful because weighted plates blocked the bedroom door from opening. Appellant stopped her and guided her to the opposite side of the room. As S.R. reached to pick up her cell phone, appellant pushed her down. She yelled at him to stop. He straddled her, pushed her down, and covered her mouth and nose, making it hard for her to breathe. He pulled off shorts S.R. was wearing underneath her dress and lifted up her dress to her stomach. She continued to resist but appellant repeatedly told her, "It's okay." Appellant forced his penis into her vagina. She was in shock and in pain. She estimated that he continued penetrating her for 10 minutes. Her friend K.D., who was in the bedroom having sex at the time with appellant's friend, M.C., confirmed that she saw appellant on top of S.R. thrusting his hips for about 10 minutes. K.D. also confirmed that she heard S.R. tell appellant to stop.
When appellant got off of S.R., she tried to get away from him and pull her shorts up. Appellant rolled her onto her stomach and inserted his penis into her vagina from behind. S.R. estimated that appellant continued penetrating her for another 10 minutes.
When appellant released S.R., he asked his friend, M.C., if he wanted to switch partners. S.R. ran to the bedroom door, which M.C. helped her open, and then ran into the bathroom. After S.R. came out of the bathroom, M.C. told her to wait outside. M.C. retrieved S.R.'s cell phone, met her outside appellant's apartment, and drove her home. After M.C. and S.R. left, appellant sexually assaulted K.D.
In January 2016, after S.R. had attempted to commit suicide, S.R.'s father reported the sexual assault to the police, who arrested appellant about one month later. In a statement to the police, appellant initially stated that the sexual acts were consensual. He denied forcing S.R. to orally copulate him. Upon further questioning, appellant admitted that S.R. told him to stop while they were having sex because it hurt. He stopped for about one minute. According to appellant, when he resumed having sexual intercourse with S.R., she again told him to stop because it hurt. Appellant told the police he did not think about what she was saying because he was too drunk.
In a juvenile wardship petition filed in February 2016, the Solano County District Attorney alleged that appellant committed two counts of forcible rape (Pen. Code, § 261(c)(2)(c), subd. (a)(2)) and one count of forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)). In August 2016, the district attorney amended the petition by adding one count of lewd or lascivious acts on a child under 14 years of age. (Pen. Code, § 288, subd. (a).) Pursuant to a plea agreement, appellant admitted the charge of lewd or lascivious acts on a child under 14 years of age. The court dismissed the remaining counts on the district attorney's motion.
Following a contested dispositional hearing, the juvenile court adjudged appellant a ward and committed him to the DJF with a maximum confinement time of six years. Appellant timely appealed from the dispositional order.
DISCUSSION
Appellant claims the juvenile court abused its discretion by committing him to the DJF because there was insufficient evidence he will benefit from a DJF commitment. He also contends the record does not establish that a less restrictive placement would be ineffective or inappropriate. We begin by summarizing the evidence presented to the juvenile court.
1. Background
A. Prosecution case
The probation report recommended that appellant be placed on probation, remain in the custody of his parents, and be provided community-based sex offender and drug abuse treatment. Notwithstanding the recommendation of community-based treatment, the probation officer who prepared the probation report, Veronica Trahan, expressed concern about the seriousness of the offense, appellant's failure to accept responsibility for his conduct, and his alcohol abuse issues. She noted that appellant had displayed satisfactory behavior while in custody and had not involved himself in any serious incidents. Appellant had no prior criminal history aside from an incident involving public intoxication that did not result in the filing of a wardship petition.
At the dispositional hearing, Trahan testified that she met with the victim, S.R. Trahan reported that S.R. had been severely impacted by the offenses appellant had committed and had tried to take her own life. S.R. lived one block from appellant on the same street and was frightened at the prospect of his release.
Trahan's investigation of appellant's home life and family dynamics revealed that there were substance abuse issues involving his father as well as emotional and physical abuse among his family. She also found evidence that appellant and his brother often were involved in physical altercations. According to Trahan, appellant had received all "F" grades at the high school where he was previously registered in the fall semester of 2015 but received all "A" grades once he enrolled in the school at juvenile hall.
Monika Jones, the supervising probation officer for juvenile sex offenders in Solano County, also testified at the dispositional hearing. She described how community-based treatment for sex offenders works. Jones acknowledged the limitations of probation supervision, particularly with respect to monitoring alcohol use and a probationer's interactions with other minors. She testified that she had supervised some juvenile sex offenders who had been released from the DJF. Jones said that the DJF and group home placements provide a more intensive version of sex offender treatment and testified that, in her experience, none of the sex offenders treated at the DJF had been committed to the DJF for a subsequent sexual offense.
At the request of the probation department, clinical psychologist Dr. Kimberly Smith evaluated appellant to determine his risk for sexual re-offense and to assess appropriate counseling for appellant. Dr. Smith concluded appellant presented a "low risk for sexual re-offense," and that he could be safely treated in the community under "strict supervision" and under the condition that he is not to be left alone with minor females over the age of 13 without supervision, except at school. Dr. Smith noted that this was appellant's first charged sexual offense. The offenses, which appeared to be opportunistic and impulsive, occurred on one occasion and were not part of a known pattern of sexual misconduct. Dr. Smith acknowledged that appellant does not accept full responsibility for his behavior.
Dr. Smith elaborated on her report in testimony given at the dispositional hearing. She reiterated her recommendation that appellant receive "community out-patient sex offender treatment specific to juveniles." She explained what she meant by "strict supervision" as parental and probation monitoring as well as a requirement that appellant meet regularly with his probation officer. She characterized appellant's minimization of the offense as "more of a treatment issue than a risk assessment issue." Dr. Smith did not think appellant required treatment in a group home or a more restrictive setting. She testified that his case did not present many of the risk factors that would support a more restrictive placement. She was not familiar with the sex offender treatment program at the DJF but conjectured that it would be "fairly similar" to one in the community.
B. Defense case
At the request of the public defender, clinical psychologist Dr. Michael Henry evaluated appellant and wrote an April 2016 report addressing appellant's risk of re-offending, his sex offender treatment needs, and his amenability to such treatment. Dr. Henry concluded there was a low risk appellant would commit another sex offense and that he was suited for community-based sex offender treatment. The evaluation revealed that appellant displayed "moderate to high denial for his past sex charge." According to Dr. Henry, appellant believes the allegations against him are exaggerated and does not believe anyone was hurt by what happened, although appellant acknowledges he made a mistake.
Dr. Henry testified at the dispositional hearing. He did not consider appellant's partial denial of the offense as disqualifying for community treatment because 90 percent of all sexual offenders have some level of denial and there are individuals who have committed similar offenses that are safely being treated in the community. In arriving at the conclusion that appellant was at a low risk of re-offending, Dr. Henry found it very important that appellant had not re-offended since the assault on S.R. Dr. Henry believed it would be more "productive" for a low-risk offender to be treated in the community as opposed to an institutional setting.
Dr. Henry was familiar with the sex offender treatment at the DJF and testified that it was similar to the community-based program he advocated. However, Dr. Henry opined that the DFJ treatment program addresses other issues that appellant did not need to focus on, such as behavior modification and learning to be responsible.
Appellant's aunt stated she was willing to house appellant if he were to be released into the community on probation. She lived in Fairfield more than one mile away from appellant's parents.
C. Juvenile court's order
Appellant's attorney urged the court to follow the unanimous recommendation of the psychologists and the probation department to place appellant in his parents' home with community-based treatment. By contrast, the district attorney asked the court to reject the probation department's recommendation and place appellant in either a group home or at the DJF.
The juvenile court committed appellant to the DJF. In justifying its decision, the court stated that the professionals who testified all agreed that appellant requires intensive sex offender treatment. The court further observed that appellant needs strict supervision and a "significant substance abuse program." And the court emphasized that appellant remained in denial and failed to express remorse for his actions. The court posed the question before it as whether the treatment appellant required is best provided in the community or at the DJF.
The court rejected the option of sending appellant home for treatment. Among other things, the court expressed the view that it would defy "common sense" to send him home, just one block away from the victim. Further, in light of a substance abuse problem at home with appellant's father, and a domestic violence problem there as well, the court reasoned that the home environment could not offer the strict supervision appellant required and would be "like sending him from the frying pan into the fire." The court refused to place appellant with his aunt, explaining that it knew nothing about the home or the people that lived there.
The court stated it did not "understand the professional opinions" recommending treatment in the community. It also observed that appellant did well in a structured environment, as evidenced by the improvement in his grades while he was at juvenile hall. The court reasoned that appellant would not have a structured environment "in any community-based treatment, unless it was in a group home, which [the court was] not willing to consider at this point." Accordingly, the court concluded that the DJF "is the best treatment alternative" and the "least restrictive environment, given the facts of this case."
2. Forfeiture
The People contend that appellant forfeited his challenge to the order committing him to the DJF because he did not object. We disagree. The cases relied upon by the People stand for the proposition that a defendant forfeits a challenge to a discretionary sentencing decision when the failure to object prevents the development of a factual record to support the decision. (See People v. Scott (1994) 9 Cal.4th 331, 353; In re John H. (1992) 3 Cal.App.4th 1109, 1112-1113.) The concern is that judicial resources will otherwise be spent correcting errors that could have been easily prevented if brought to the lower court's attention. (Ibid.)
Here, the primary purpose of the dispositional hearing was to consider the proper placement for appellant, who sought to be placed in his parents' home and necessarily objected to a DJF commitment. Appellant's counsel presented evidence of a less restrictive alternative and urged that a DJF commitment would not benefit appellant. The issues that appellant raises on appeal were plainly considered by the juvenile court and were the subject of a lengthy evidentiary hearing. Under these circumstances, appellant preserved his challenge to the order committing him to the DJF.
3. Standard of review
"The appellate court reviews a commitment decision for abuse of discretion, indulging all reasonable inferences to support the juvenile court's decision." (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) We will not disturb the juvenile court's findings when they are supported by substantial evidence. (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.) The record must demonstrate both that a commitment to the DJF will result in a probable benefit to the minor and that a less restrictive alternative is either inappropriate or ineffective. (In re Angela M., supra, at p. 1396.) "The gravity of the offense is by statute a proper consideration at disposition." (In re Robert H. (2002) 96 Cal.App.4th 1317, 1330; Welf. & Inst. Code, § 725.5.) A court does not necessarily abuse its discretion by ordering commitment to the DJF before other less restrictive options have been tried. (In re Eddie M. (2003) 31 Cal.4th 480, 507.)
4. Probable Benefit
Appellant contends there is a "total lack of evidence that he will benefit from the commitment" to the DJF. He argues that, aside from an acknowledgement that the DJF has a sex offender treatment program, there is no evidence in the record of any other services the DJF might provide. And, he claims the evidence before the court was that committing him to the DJF would be inappropriate because he would be placed with higher level offenders and the programs offered at the DJF focus on issues that are not relevant to his treatment.
We tend to agree with appellant that there was limited testimony and other evidence bearing directly upon how he could benefit from a commitment to the DJF. The two psychologists and the probation department witnesses primarily testified about the benefits of community-based treatment. Indeed, at one point the court observed that the probation officer was unprepared to testify about programs and benefits offered by the DJF and stated that counsel would need to get somebody from the DJF to provide that type of information to the court. No such witness testified.
Nevertheless, we conclude there was evidence before the court sufficient to support its finding of probable benefit. Among other things, there was evidence that appellant would benefit from a secure setting. Appellant had done well in a more secure setting because his grades had improved significantly while he was in custody at juvenile hall. There was also evidence that appellant would benefit from strict supervision. Dr. Smith opined that appellant needed strict supervision, and the court was presented with evidence that probation supervision had its limitations, particularly with respect to monitoring alcohol use and a probationer's interactions with other minors. The court could reasonably conclude that a more secure setting such as that provided at the DJF would offer the strict supervision that would be more beneficial to appellant. And, there was evidence that appellant would benefit from the treatment programs offered at the DJF. Dr. Henry testified that the treatment program at the DJF was similar to the community-based program he advocated. Just because the DJF program also addresses some issues that may not be relevant to appellant's situation does not mean the program as a whole will not benefit appellant.
The juvenile court "is only required to find if it is probable a minor will benefit from being committed" to the DJF. (In re Jonathan T. (2008) 166 Cal.App.4th 474, 486.) "There is no requirement that the court find exactly how a minor will benefit from being committed to [the DJF].)" (Ibid.) In this case, there was evidence to support a finding that a commitment to the DJF would be of probable benefit to appellant.
5. Less Restrictive Alternatives
Appellant next argues there was insufficient evidence that less restrictive alternatives to the DJF would be inappropriate or ineffective. He points out that the only placement that was investigated was for him to live with his parents and participate in community-based treatment. According to appellant, because the probation department never investigated any potential alternatives, the court was not presented with a full or accurate picture of available alternatives and simply defaulted to the most restrictive placement at the DJF. For the reasons that follow, we agree with appellant that the record before us is insufficient to support a finding that alternatives less restrictive than the DJF would be ineffective or inappropriate.
The DJF is properly reserved for only the most serious cases after all else has failed. (In re Teofilio A. (1989) 210 Cal.App.3d 571, 578.) The statutory scheme contemplates a series of dispositional orders that progressively become more restrictive and punitive starting with home placement under supervision and ending with a DJF commitment " 'as a last resort.' " (Ibid.) While a court does not necessarily abuse its discretion by ordering a DJF commitment before other less restrictive options have been tried (see In re Eddie M., supra, 31 Cal.4th at p. 507), there must at least be some evidence in the record to support a finding that the purposes underlying the DJF commitment cannot be accomplished by placement in a less restrictive facility. (In re Michael R. (1977) 73 Cal.App.3d 327, 340.) It is not necessary for the court to state on the record the reasons for its rejection of other placement alternatives as long as there is "some evidence to support the judge's implied determination that he sub silentio considered and rejected reasonable alternative dispositions." (In re Teofilio A., supra, at p. 577.)
Here, the court viewed its task as making a binary choice between home placement, the least restrictive option, and commitment to the DJF, the option of last resort and the most restrictive. As between those two options, there is evidence in the record to support a finding that home placement would be inappropriate. The court emphasized substance abuse and domestic violence issues in the home, the home's proximity to the victim, and the lack of strict supervision and a secure environment that appellant required. The juvenile court also stressed the serious nature of appellant's offense, which merits a more restrictive and punitive placement. If our review of the juvenile court's order was simply limited to assessing whether home placement was an ineffective or inappropriate alternative to a DJF commitment, we would be inclined to uphold the decision as supported by sufficient evidence. But that is not the extent of our inquiry.
In assessing whether alternatives less restrictive than the DJF are ineffective or inappropriate, we must necessarily consider whether there is some basis for rejecting alternatives along the continuum of placement options that are more restrictive than home placement and less restrictive than the DJF. In this case, while the court stated it would not even consider one such option—a group home placement—it is not clear what evidence supports such a determination. The court did not articulate the reasons for its rejection of a group home alternative. And the reasons the court offered for committing appellant to the DJF would appear to apply equally to a group home, where appellant would not be near the victim and would be in a more secure environment with strict supervision and treatment options that would presumably be more intense and structured than community-based treatment.
Part of the problem is that appellant was not screened for a group home or any other intermediate placement alternative, so we have no record that would allow us to rule out those options as inappropriate or ineffective. (See In re Joseph H. (2015) 237 Cal.App.4th 517, 544 [noting that other secured facilities had rejected the minor or were otherwise inappropriate].) But we do not mean to suggest that a court necessarily abuses its discretion if a minor is committed to the DJF without having first been screened for less restrictive alternatives. In some cases, there is evidence in the record establishing that less restrictive alternative would be inappropriate or ineffective even without the need to screen the minor. For example, a minor may not qualify for a group home because of his age, the minor may have performed poorly in less restrictive placements, or there may be evidence that the minor has absconded from placements less secure than the DJF. (See In re Jonathan T., supra, 166 Cal.App.4th at p. 486 [minor had history of running away from home and had exhibited hostile and aggressive conduct at juvenile hall]; In re Samuel B. (1986) 184 Cal.App.3d 1100, 1105 [camp alternative inappropriate due to minor's age], disapproved on other grounds in People v. Hernandez (1988) 46 Cal.3d 194, 206 & fn. 14.) Here, we are not aware of any evidence or circumstances that would allow us to conclude that an intermediate placement less restrictive than the DJF would be inappropriate.
Of course, the juvenile court did place emphasis on the seriousness of appellant's offense. To be sure, it was a serious sex crime that would support a more restrictive or punitive disposition than a home placement. But a DJF commitment cannot be based solely on the seriousness of the offense. (In re Michael R., supra, 73 Cal.App.3d at p. 340.) Absent some evidence to support a finding that the purposes of the DJF commitment cannot be accomplished by placement in a less restrictive facility, a DJF commitment is not justified by the nature of the offense alone. (Ibid.)
While the record clearly supports the court's rejection of home placement for appellant, we conclude the evidence is insufficient to support a finding that alternatives less restrictive than the DFJ are inappropriate or ineffective. We are therefore compelled to reverse the dispositional order and remand for a new dispositional hearing. We do not mean to suggest by this disposition that a DJF commitment is necessarily an inappropriate placement for appellant. We simply note that the record as it currently exists does not support the commitment. On remand, the juvenile court must consider less restrictive alternatives (other than just home placement) and create a record that will at least impliedly support any decision to reject such less restrictive options.
In light of our disposition, it is unnecessary to address appellant's contention that the juvenile court lacked authority to impose probation conditions. We simply note that, if the juvenile court were to commit appellant to the DJF upon remand, it lacks authority to impose conditions of probation, as the People have conceded on appeal. (In re Allen N. (2000) 84 Cal.App.4th 513, 516.)
DISPOSITION
The dispositional order is reversed. The matter is remanded to the juvenile court for a new dispositional hearing consistent with the views expressed in this opinion.
/s/_________
McGuiness, P.J. We concur: /s/_________
Siggins, J. /s/_________
Jenkins, J.