In re C.G.

Filed 1/6/10 In re C.G. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

C.G. appeals from orders of the juvenile court committing him to the Department of Juvenile Justice.[1] He contends the commitment was an abuse of discretion because there was no evidence of probable benefit to him. We affirm.

STATEMENT OF THE CASE AND FACTS

On May 20, 2004, an original petition under Welfare and Institutions Code section 602 was filed in Contra Costa Juvenile Court alleging that appellant, then 14 years old, committed a forcible lewd act upon a child under the age of 14 years. (Pen. Code,  288, subd. (b)(1).) The victim was appellants six-year-old cousin. While sitting on a couch next to the victim, appellant pulled down his pants, pulled her head into his lap, and told her to suck his penis. Appellant initially denied any wrongdoing, but eventually admitted the incident to the police, telling them his penis was in the victims mouth for a couple of seconds; he said at first he thought the act was funny, but he then realized it was wrong and was sorry for doing it. After a contested hearing, the petition was sustained on August 27, 2004.

The probation report prepared in September 2004 related that appellant denied the allegations, saying he admitted the offense to the police because they tricked him by telling him he could go home if he admitted the offense. The victims mother, appellants aunt, told the probation officer that appellant had tried to get her son to orally copulate him and that appellant had sexual intercourse with 12-year-old girls at his house when his mother was not home. In December 2001, appellant had been reported for sexually abusing his four-year-old half-sister while visiting his fathers home; the police elected to pursue therapeutic intervention rather than criminal prosecution. Appellant reported that his older brother had made him orally copulate him several times, saying he had never told anyone about these incidents. Appellants therapist, with whom he had been meeting for a year, told the probation officer that appellants level of truthfulness has always been an issue in therapy, that during the 2002-2003 school year appellant had been found in the school bathroom with an eight-year-old girl orally copulating him, but the girls parents had not wanted to press charges, and that on another occasion appellant had a developmentally [sic] female student show him her breasts while on the school bus. The therapist felt appellant needed to be in a highly structured program for sex offenders.

Appellant lived with his mother and several half-siblings in Richmond. Appellant had been close to his father and had seen him often until two years before, when his father moved to Stockton. Appellant stated that his father never followed through on promises to visit, including not coming to appellants last court appearance after saying he would.

The probation departments placement committee, after screening appellant, felt he was at risk to re-offend and a residential sex offender treatment program would be appropriate for him due to the nature of the offense, the minors obvious need for counseling in order to address his inappropriate sexual behavior, and the need for the protection of the community, but could not make a definite recommendation without first obtaining a psychological assessment.

Appellant told the psychologist who completed this assessment about the oral copulation with his older brother, as well as that he began watching pornographic movies when he was 12 years old. He denied molesting his half-sister, described the current incident as part of a game of spin the bottle with his cousins and siblings, and denied other incidents of inappropriate sexual conduct. Appellant had been diagnosed with attention deficit hyperactivity disorder (ADHD), for which he was taking Ritalin, and had been in special education classes since at least sixth grade. After administering a variety of tests, the psychologist opined that appellant suffered from cognitive and behavioral problems beyond ADHD that required more intensive services than could be provided on an outpatient basis. The report concluded that although there is nothing to warrant that [C.G.] is a suitable candidate for placement in the Youth Authority, he is certainly an appropriate candidate for placement in a well structured residential adolescent sex offender treatment program.

Appellant was adjudged a ward of the court on October 6, 2004, and subsequently placed at the Teen Triumph program in Stockton. In March 2005, the probation officer reported that appellant had initially had difficulty adjusting to the program, but his behavior had improved. It was reported that appellants father had a negative attitude towards the efforts of the court and probation to place his child in treatment and that appellants mother has been supportive and positive towards the program and [C.G.]s rehabilitation.

Appellant was removed from Teen Triumph on June 3 due to his struggle to adjust to the program rules and expectations. The probation officer noted that appellant was a child with emotional issues that complicate his ability to fully comprehend direction. He was returned to Teen Triumph on June 17, then removed again on July 7, because he had assaulted a classmate and accumulated numerous incident reports describing non-compliance, poor attitude and negativity towards peers and staff. Appellant had jumped out of the car that was transporting him to Contra Costa County Juvenile Hall, but was apprehended five minutes later.

A court-ordered psychological assessment on July 13 resulted in a report, which noted, [t]he minors inability to see his complicity in his own behavior, empathize with his victim, or lack of shame suggest a slower progress in treatment. [Appellants] lack of compliance with probation and treatment mirror those of his father. That coupled with his risk factors (family, school and peer conflict, and mental health issues) makes him a moderate to high risk of recidivism.

Appellant was placed at a sex offender treatment program in Orangevale, the Mathiot Group Home, on August 1, 2005. In February 2006, the probation officer reported that he had been involved in various incidents of misconduct, including cursing and disrespecting staff, cheating, lying, poking his roommates buttocks while in bed at night, and stealing. In November 2005, a quarterly report by the Mathiot clinician stated that appellant had a consistent pattern of rule-breaking and secrecy that has placed his program in jeopardy, once again. Appellant was terminated from the Mathiot program on October 13, 2006, because he was not progressing and was frequently disruptive. Appellant had had sex with his girlfriend while on a home pass and she was pregnant. The discharge summary from Mathiot related that appellant had made significant progress, but then regressed to a point where he was a negative influence on the treatment community and a waste of treatment time and effort. The report indicated that appellants regression was linked to negative consequences of attempting to work on a relationship with his father. The report stated that it was not likely appellant would molest again, but he was very vulnerable and at high risk for a statutory rape or other criminal offenses and a high risk to society, and recommended that he would benefit from a lengthy stay in Juvenile Hall to re-commit to work in a healthy manner and from not having contact with his father.

Appellant was placed at the Childrens Home of Stockton Juvenile Sex Offender Program on October 19, 2006. He was discharged from the program on January 4, 2007, for his inappropriate sexual behavior and his continuous lying to staff and manipulating and threatening of peers. The program reported that appellant had snuck a female student into the locker room and later bragged to male peers that she had given him a blow job. The probation officer reported, [t]he minor has a chronic history of deceitfulness with staff and peers as well as manipulation and t[h]reatening of peers. The minor failed two other programs. The most recent placement, Childrens Home of Stockton, has informed this deputy that the minor will not be able to return to their facility. The minors sexual acting out and the level of sophistication that he presented to manipulate and deceive are behaviors that the therapist believes the minor is a serious predator and has developed into criminal thinking that is a grave concern for the safety of the minor and the community. The court sustained a probation violation on January 10, 2007.

On February 6, 2007, appellant was placed at Breaking the Cycle, a juvenile sex offender treatment program in Carmichael. In June 2007, the program asked for appellant to be removed because of his unwillingness to follow program rules, defiance toward staff and harassment of his peers, then agreed to give him one last chance. The probation officer related that appellant appeared delighted and agreed to take his placement more seriously.

On July 6, 2007, police responded to a call from the Program Director at Breaking the Cycle after a 13-year-old resident reported that appellant, then 17 years old, had sexually assaulted him. The victim stated that appellant pressured him into allowing appellant to put his penis in the victims anus; after 30 seconds or a minute he told appellant to stop and tried to push him away, but appellant put his hand on the victims back to hold him down. Appellant denied the conduct, then later said there was a possibility he might have put his fingers in the victims anus while they were horse playing, but did not do anything inappropriate. Appellant was discharged from the program, arrested and taken to Juvenile Hall.

On July 10, 2007, a wardship petition was filed in Sacramento County Juvenile Court, alleging a violation of Penal Code section 286, subdivision (c), forcible sodomy. The petition was amended on July 25, to allege violation of Penal Code section 288, subdivision (a), lewd conduct, as a second count. After a contested hearing on October 4, the court found the allegation of lewd conduct true and the case was transferred to Contra Costa County for disposition.

On October 18, 2007, the Contra Costa County Probation Department alleged that appellant violated probation by being discharged from Breaking the Cycle for noncompliance with program rules. The probation violation was sustained on appellants admission on October 19. The probation report prepared for a November 2 hearing stated that appellant had been screened for placement at several programs that found him inappropriate for placement because they could not offer the sexual offender treatment appellant needed. The report stated that appellant could not be placed at any other licensed facility providing sex offender treatment because licensing requirements prohibit placing an 18-year-old in a licensed facility. The probation department felt appellant was appropriate for the Department of Juvenile Justice [DJJ], where he can receive proper sex offender treatment. Appellant had been screened for DJJ and the intake worker indicated he would have a baseline parole consideration date of 4 years, DJJ would have jurisdiction until he was 25 years old, and appellant would participate in the sex offender program pursuant to [Welfare and Institutions Code section] 727.6 and a victim awareness program.

An updated probation report was prepared for a contested dispositional hearing on December 12, 2008. Appellant, now 19 years old, had been transferred from Juvenile Hall to county jail in December 2007, and had completed drug and domestic violence programs there. Appellant told the probation officer he believed he could receive more intensive therapy in an outpatient program but, if he could not live with his mother and participate in outpatient sex offender treatment, he would rather serve his remaining custody time in a penitentiary.  The probation department continued to recommend commitment to DJJ.

At the dispositional hearing on December 12, 2008, appellants current probation officer, Dorothy Carter, testified that the DJJ intake worker had told her appellant would participate in the sex offender program and victim awareness program at DJJ. Asked by appellants attorney whether she was aware of the many difficulties that the Department of Juvenile Justice has had in caring for people committed to its facility, Carter testified she did not have personal knowledge and had heard of kids getting moved out and moved around, that kind of thing, but nothing specific. Asked if she was aware whether or not any ward from this county has ever received sexual offender treatment while committed to the Department of Juvenile Justice, Carter replied, No, Im not aware.

Under questioning by the district attorney, Carter testified that she believed DJJ was an appropriate placement for appellant because county jail or prison would not be able to provide sex offender treatment to a juvenile sex offender and appellant needed to be in a residential rather than outpatient program because it was not safe for him to be living in the community. Carter had not looked to see what sex offender programs might be available for adults because appellant was a juvenile offender and we dont do that as a juvenile department.

Carter testified that appellant had not taken responsibility for the current offense, as he denied the sexual conduct and did not seem remorseful. He also denied the 2004 sexual conduct. He had been in five placements, but had not successfully completed any of the programs.

Appellants mother thought the best course for appellant would be to live with his father and participate in outpatient treatment because the residential programs were not working. She thought it would help appellant to have a father figure in his life to help guide him.

Appellant also asked to live with his father and participate in outpatient treatment. Acknowledging that he had never been able to complete a juvenile sex offender program, he testified that in those programs youre there with a lot of people you dont know. . . , youre dealing with their issues and your own issues, youre trying to work program at the same time. He had never been given the opportunity to participate in an outpatient program and thought this would be best for him because his father could guide him at the same time. Appellant testified that he knew there would not be further charges brought against him if he was allowed to participate in a program where Im able to work on my issues properly. Appellant did not understand why he had been terminated from his group home after he was honest in telling his therapist that his girlfriend had become pregnant. Asked about the incident with a girl in a locker room at a program, he testified that it was a classroom, she was a friend, he kissed her and she was the same age as me. She was 17, too. Appellant testified that when he was a minor his process of thinking was screwed up, but it had changed through being in the programs and he was willing to show that I am acceptable and I will change.

Appellant also testified that people who had been in DJJ told him when you first get there, somebody will test you. So youre going to end up getting into a fight. If you get into a fight thats six months added on to your time. Even if you mind your own business, somebody is going to come and try to do something to you. He had also heard that the programs at DJJ were not workable because nobody is doing them. Everybody feels that once youre sent there that whats the point of doing a program. Appellant did not want to be with a bunch of people thats on something else when Im trying to do the positive thing, and had heard it took at least four years to even be seen in the program.

On cross-examination, appellant denied the sexual conduct in the current offense and stated that the victim had been angry and threatened to get back at him after an incident at the breakfast table. He did believe he had done something wrong in the 2004 incident with his cousin. He explained his failure at his first placement as resulting from his anger when he was not allowed to go home after six months of doing what he was supposed to do, having been told he would be able to, and acknowledged that he had failed his other placements as well.

Appellants former probation officer, Donna Andersson, testified that appellant had a difficult time in his first placement and that while his mother was very supportive, his fathers living near the group home caused problems because he refused to participate in family counseling and was not supportive of the process of the program. Also, appellant could not visit his fathers home because his father refused to have appellants half-sister go to therapy that was required as a result of the allegation that appellant had molested her. Andersson was surprised when appellant was discharged from Mathiot because things had been going well and the problems discussed in Mathiots scathing discharge report had not previously been communicated to her. She testified that the constant theme throughout appellants out-of-home placement was the tendency to lie. This continued when he was at Childrens Home of Stockton: [Y]ou could not trust [appellant], in that, he was very strong in denial, he would lie, he would manipulate and he would bully his peers.

Andersson testified that she absolutely did not think appellant would benefit from outpatient treatment because he had proven he needed to be in a structured environment with 24/7 supervision and intense daily therapy. At age 19, having graduated from high school, appellant was not eligible to go to another group home. Andersson had not talked to appellant in about two years, but when she was supervising him he did not take responsibility for his conduct. She testified that DJJ was appropriate because, having shown no remorse and taken no responsibility for his behavior, and given his propensity toward lying, appellant posed a threat to the community. Andersson had spoken with DJJ staff about services offered there on some 20 to 30 occasions over the years, with most of these conversations including services for sex offenders. She understood that residents could be assigned to a juvenile sex offender treatment program very similar to that used at group home programs, in addition to which they would have individual therapy, group therapy and a victim awareness program. She felt these services would be helpful for appellant and testified that some of the juvenile sex offenders she had supervised had gone to DJJ for sex offender treatment.

On cross-examination, Andersson was asked by appellants attorney whether she was aware of the findings of the consent decree regarding the abominable conditions at DJJ. Andersson testified that she was aware there was a time when conditions were poor and that there had been a change in philosophy toward having smaller programs supervised by the county rather than the state. She was not aware of the conditions of the sex offender program itself. Andersson testified that appellant had not received services in juvenile hall because no program was available there, nor did the probation department contract with agencies that could work with him in county jail.

The district attorney argued for commitment to DJJ because appellants offenses were serious, he had failed in five placements, outpatient treatment would not meet his needs, and he was a threat to the community, as well as noting that appellants father appeared to be a negative influence and not an appropriate placement alternative. Appellants attorney argued that the county had recently established a youth offender program for older youths, like appellant, who would otherwise face going to DJJ, and that sex offender treatment was available in the community, although the probation department did not contract with the relevant agencies. She argued that the probation department was saying there were very limited resources available for appellant because he was no longer a minor and that DJJ was being suggested solely due to age and not due to the other considerations and needs of the minor. Appellants attorney did not think there had been contact with appellants father since appellant was at Teen Triumph in 2005, but things may well have changed in that time that would address [appellant] being able to be with someone who could be a guide for him and a system in completing a structured program.

The court committed appellant to the DJJ for a maximum term of 120 months, stating that it had considered all less restrictive programs and was fully satisfied that they are inappropriate dispositions at this time and that the minor can better benefit by the various programs provided by the Department of Juvenile Justice.

Appellant filed a timely notice of appeal on January 15, 2009.

DISCUSSION

Appellant argues the disposition order must be reversed because there was insufficient evidence that sex offender treatment programs were available at DJJ or, if they were, that they would be provided to him. He maintains there was no evidence of probable benefit to him from the commitment and that he was placed at DJJ solely because of the lack of local programs for his age.

Under Welfare and Institutions Code section 734, [n]o ward of the juvenile court shall be committed to the Youth Authority 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 Youth Authority. The appellate court reviews a commitment decision for abuse of discretion, indulging all reasonable inferences to support the juvenile courts decision. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330; In re Asean D. (1993) 14 Cal.App.4th 467, 473.) Nonetheless, there must be evidence in the record demonstrating both a probable benefit to the minor by a CYA commitment and the inappropriateness or ineffectiveness of less restrictive alternatives. (In re Pedro M. (2000) 81 Cal.App.4th 550, 555; In re Teofilio A. (1989) 210 Cal.App.3d 571, 576-577.) (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) A minor may not be committed to DJJ solely for purposes of retribution (Welf. & Inst. Code,  202, subd. (e)(5); In re Michael D. (1987) 188 Cal.App.3d 1392, 1396); the court must focus on the dual concerns of the best interests of the minor and public protection (In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684).

Appellant urges there is nothing in the record other than speculation of the probation officer to support a finding that appellant would receive rehabilitative treatment at DJJ. He notes that the probation officer had not spoken with anyone from DJJ to determine what programs were available at the time of disposition and what chance appellant had of receiving appropriate treatment.

The record reflects that appellants probation officer spoke with an intake worker at DJJ in October 2007, and was told appellant would participate in sex offender and victim awareness programs there. The dispositional hearing was not held until December 2008. The evidence indicated, however, that these were standard programs offered at DJJ. Appellants former probation officer testified that she had discussed these programs with DJJ staff on numerous occasions over the years because much of her caseload involved juvenile sex offenders.

Appellant appears to argue that the trial court would be justified in finding probable benefit to him from commitment to DJJ only if there was evidence that appellant would actually be placed in a program demonstrated to be efficacious and tailored to address his specific needs. Citing In re Joe A. (1986) 183 Cal.App.3d 11, 29, for its statement that [a] particularized consideration . . . underlies the entire juvenile court system, appellant argues the finding of probable benefit cannot be based on generalized observations about DJJs services.

In re Joe A., supra, 183 Cal.App.3d 11, concerned the jurisdictional finding on a supplemental petition (Welf. & Inst. Code,  777) alleging that the minors previous disposition had been ineffective. The minor had admitted two allegations of petty theft and been placed on probation in his mothers custody with conditions that he complete 80 hours in the juvenile court work program and attend a theft awareness class. The supplemental petition alleged that he had violated probation in that he had completed only 44 hours in the work program within the time designated by the court and failed to attend the required class. (Id. at pp. 16, 28.) In re Joe A. found the evidence insufficient to support the jurisdictional finding because these two violations of probation did not demonstrate such a complete failure of the existing dispositional order that it could be concluded further efforts to make it work would be unavailing. (Id. at p. 29.) Noting that the underlying offenses were the minors first, the probation violations were not criminal conduct, and the minor had asked for a chance to remedy his failures after spending two weeks in juvenile hall, the court stated, [t]his justifies concern that the juvenile courts approach that, as a matter of policy, a minor gets one chance and one chance only in the juvenile court work program falls short of the particularized consideration which underlies the entire juvenile court system. (Id. at pp. 28-29.)

The present case involves no similar application of a policy without regard to the particular circumstances of the minor in question. Appellants offenses were serious and the evidence showed he continued to deny and fail to take responsibility for them. Appellant had failed at five group home placements and was consistently described as continuing to lie, to engage in inappropriate sexual conduct and to manipulate and threaten peers, and as posing a threat to the community. The therapist at Childrens Home of Stockton believed appellant had become a serious predator and had developed into criminal thinking that is a grave concern for the safety of the minor and the community. The evidence indicated that appellants age made him ineligible for the juvenile offender programs available at a community level, and the consistent concern for community safety reflected in the probation reports and reports from past placements amply supported a decision that outpatient treatment was not appropriate. The evidence also supported a conclusion that sex offender treatment was available at DJJ, as appellant needed, and that appellant would benefit from the programs and setting there. (See In re Jonathan T. (2008) 166 Cal.App.4th474, 486 [probable benefit from setting as well as programs at DJJ].)

The orders are affirmed.

_________________________

Kline, P.J.

We concur:

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Haerle, J.

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Lambden, J.

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[1] The Department of Juvenile Justice (DJJ) was previously called the Youth Authority or California Youth Authority (CYA). References to the DJJ and CYA are to the same institution.