In re David M.

Filed 9/18/07 In re David M. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

David M., a minor, appeals an order of the juvenile court committing him to the Division of Juvenile Justice (DJJ). (Welf. & Inst. Code, 602.)[1] He challenges his commitment to DJJ. We affirm.

Statement of the Facts and Case

The underlying offenses giving rise to the current case occurred in 2002, when Davids four-year-old nephew Daniel told his grandmother that David had kissed his penis. David later admitted to the investigating officer on the case that he had orally copulated Daniel at least nine times beginning in early January 2002.

A delinquency petition was filed May 26, 2002, alleging that then 14-year-old David M. committed continuous sexual abuse of a child under 14 (Pen. Code, 288.5, subd. (a)). The petition was amended to add as count 2 that David had committed a lewd act on a child. (Pen. Code, 288, subd. (a)). David admitted count 2 and count 1 was dismissed, and the court ordered out-of-home placement, with a maximum period of confinement as eight years. David returned home from residential treatment in August 2004.

In August 2005, David, then 17 was detained following his probation officers filing of a section 777 petition alleging David failed to report to the officer during July and early August, failed to take his psychotropic medications, refused to do his chores, used his mothers computer without her permission, and failed to obey school rules leading to his failure of summer school in July 2005. The court sustained the allegations in the petition following a contested hearing in October 2005.

After a contested dispositional hearing, the court committed David to the DJJ, setting the maximum period of confinement as 18 months. The court further found that David had exceptional needs and ordered him immediately begin a sex offender class upon arrival . . . . This appeal followed.

Discussion

David asserts on appeal that the juvenile court abused its discretion when it committed him to DJJ, because the facts underlying the section 777 petition do not show a failure of the prior placement so as to justify the DJJ commitment; and there was not a sufficient showing that a DJJ commitment would be of probable benefit to David.

On appeal, this court must review a DJJ commitment only for abuse of discretion, and indulge all reasonable inferences to support the decision of the juvenile court. (In re Asean D. (1993) 14 Cal.App.4th 467, 473; In re Tyrone O. (1989) 209 Cal.App.3d 145, 151; In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.) In evaluating the evidence, we apply the substantial evidence test. (In re Teofilio A. (1989) 210 Cal.App.3d 571, 579.) The evidence, however, must demonstrate probable benefit to the minor from commitment to the [DJJ] and that less restrictive alternatives would be ineffective or inappropriate. [Citation.] (In re George M. (1993) 14 Cal.App.4th 376, 379.)

In determining the appropriate disposition for a minor found to be a ward of the court, the court must focus on both the need for public protection and the best interests of the minor. ( 202; In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.) It should consider, among other things, the age of the minor, the circumstances and gravity of the offense, and the minors previous delinquent history. ( 725.5.) If the court decides that a commitment to DJJ is appropriate, it must be 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. ( 734.) Moreover, [i]f 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. (In re Gerardo B. (1989) 207 Cal.App.3d 1252, 1258.)

Here, David asserts the acts that constituted the violation of his probation, namely failing to complete a summer school program, failing to report to his probation officer several times and failure to follow his parents rules do not justify at DJJ commitment.

He relies in part on In re Joe A. (1986) 183 Cal.App.3d 11 (Joe A.) for the proposition that his acts in violation of his probation were not sufficient to support a finding that he failed in his prior placement. In Joe A., the supplemental petition alleged the previous disposition had been ineffective in that the minor had violated the terms of his probation by failing to complete an 80-hour work program by a particular date and by failing to attend a theft awareness class on a particular date. The Court of Appeal concluded these allegations were insufficient to support the juvenile courts finding, reasoning that these violations of probation do not exemplify such a complete failure of the existing disposition that it would be unavailing to try anything further at that level of restriction. (Id. at p. 28.) The court further noted that the minor had asked the juvenile court to increase the work program hours and claimed to have come to his senses, that the underlying offense was relatively minor and that the minor had no prior contacts with the juvenile court. (Ibid.)

Although the minor in Joe A. exhibited poor judgment, as did David, Davids behavior following his return home was far more serious than that in Joe A. David continued to use his mothers computer without her permission to search for pornography, including child pornography containing 10-year-old females, and bestiality type pictures. By February 2005, David refused to attend some counseling sessions, and was not attending school regularly, walking out of the classroom . . . and leaving campus. In May 2005, David brought a pornographic book entitled Suicide Girls to school and refused to relinquish the book to his teacher or principal when asked. Davids therapist reported that Davids behavior at home was problematic as well, and that he was lazy, unmotivated, not listening, yelling at his mother in public places, and reportedly searching for child pornography on the Internet. Davids escalating defiance at home and at school, as well as his continued viewing of child pornography demonstrate that his two year out of home placement was ineffective in dealing with his sexual problems, and his proclivity toward pedophilia. The juvenile court correctly considered this behavior and other relevant factors in determining that DJJ was the appropriate disposition.

In addition to the fact that David failed his previous placement, the court also considered other relevant factors in determining DJJ to be an appropriate placement for David. Specifically, at the time of the commitment, David was four days shy of his 19 birthday. Based on Davids majority, as well as his defiance and pedophilia issues, placement in juvenile hall as David suggested to the court, would be unsatisfactory, and would not provide the necessary treatment and resources necessary for his issues.

Moreover, the circumstances and gravity of the underlying offense also contributed to the courts order here. Specifically, the record indicates that David admitted to at least nine acts of lewd acts with a child 10 years younger than himself, minimizing the seriousness of the offenses by claiming the child enticed him to commit the acts. In addition David reported to this evaluator Dr. Abbot in 2002 that he first started to become sexually involved with young boys when he was 12, abusing five boys including the victim in this case and four others during the preceding two years. This sexual conduct included fondling them, orally copulating them, having them touch his penis and sodomizing them. The nature and severity of the underlying offense, and the facts surrounding it, support the courts DJJ commitment.

Finally, Davids mental health history and prior attempts at rehabilitation were relevant considerations for the court in committing him to DJJ. At the time of Davids original detention, he was reported as suffering from bipolar disorder and taking medications for it. Davids mother reported to the probation officer that David has homicidal and suicidal thoughts. He had been committed to Charter Hospital approximately three times in the past. He tortures, bit[e]s, and tries to suffocate cats. He tried to kill himself at age six or seven by lying down in the middle of a busy street. The mental health evaluator in 2002, Dr. Abbot noted that Davids thoughts appeared preoccupied with themes of violence . . . . David also said he had auditory hallucinations in which an alter ego . . . takes over his personality and causes him to act in violent and aggressive ways.

Based on his psychological evaluation, Dr. Abbot believed David suffered from severe emotional disturbance, including conduct and bi-polar disorder, and that except for his age at the time as being under 16, David met the diagnostic criteria for pedophilia. Dr. Abbot also believed David showed significant indicators of the potential to reoffend sexually against young children. Dr. Abbot further opined that if David failed a residential placement for adolescents who engage in sexually offending behavior, he should be committed to DJJ, which would provide the level of security necessary to protect the community.

The courts consideration of numerous factors supports its decision to commit David to DJJ. Despite Davids commitment to a structured residential treatment program for two years following his initial detention, David continued to demonstrate sexually inappropriate and defiant behavior, including not behaving in school or at home, searching for child pornography on the Internet, not taking his psychotropic medication and refusing to participate in some counseling sessions. Such behavior demonstrates David failed to be rehabilitated, and continued to pose a risk to the community. Based on these considerations, the court did not abuse its discretion in committing David to DJJ.

Disposition

The order of the juvenile court is affirmed.

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RUSHING, P.J.

WE CONCUR:

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PREMO, J.

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ELIA, J.

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[1] All further statutory references are to the Welfare and Institutions Code.