In re T.C.
Filed 3/22/13
In re T.C. CA1/4
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opinion has not been certified for publication or ordered published for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
THREE
In re T.C.,
a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
T.C.,
Defendant and Appellant.
A129486
(Solano County
Super. Ct. No. J37038)
In re T.C.,
on Habeas Corpus.
A131464
T.C.,
a ward of the court, appeals from a juvenile court
California Department of Corrections and
Rehabilitation, Division of Juvenile Justice (now the Division of Juvenile
Facilities (DJF)). The commitment order
was entered after appellant was found to have violated the terms of his
probation imposed on two sustained petitions for committing acts that
constituted violations of Penal Code sections 243.4, subdivision (a) (sexual
battery) and section 288, subdivision (b)(1) (lewd act on a child).
On
direct appeal, appellant challenges both the finding that he violated probation
and the DJF commitment. He also contends
he was entitled to a jury trial on the underlying sexual offenses supporting
his adjudication for violating Penal Code section 288 before the court imposed
the mandatory “lifetime sanctions†of sex offender registration (Pen. Code,
§§ 290, 290.008, 290.016) and the attendant mandatory consequence of sex
offender residency restriction (Pen. Code, § 3003.5, subd. (b)) after his
release from DJF.
title="">[1] Appellant has also filed a petition for writ
of habeas corpus challenging his DJF commitment.
summarily deny the petition for writ of
habeas corpus.
FACTS
On November 14,
2006, the Solano County district attorney filed a petition under section 602 of
the Welfare and Institutions Code
name="_ftnref3" title="">[3]
alleging that between August 29 and September 29, 2006, then 14-year-old
appellant and an accomplice had committed an act that constituted sexual
battery, as a felony, in violation of Penal Code section 243.4, subdivision
(a). The petition was based on an
incident during which appellant allegedly touched a 13-year-old female
classmate’s vagina outside her clothing after another student had dared
appellant to touch the victim between her legs.
When the victim slapped appellant and told him to get away, he touched
her breasts outside her clothing. After
the juvenile court reduced the allegation to sexual battery, as a misdemeanor
(Pen. Code, §§ 17, subd. (b), 243.4, subd. (a)), appellant admitted the
amended charge. The juvenile court
declared appellant a ward of the court, returned him to his parent’s custody,
and placed him on probation with terms and conditions, including a prohibition
against unsupervised contact with females under the age of 13. On May 15, 2007, the Juvenile Division of the
Solano County Superior Court (probation department) filed a petition alleging
that appellant had violated probation.
Appellant admitted to violating probationary conditions directing him to
attend school and comply with school rules.
The matter was continued for disposition.
In
the interim, on June 5, 2007, the Santa Clara County district attorney filed a
section 602 petition alleging that appellant had committed two acts of forcible
lewd and lascivious acts on a minor under the age of 14 years, constituting
offenses in violation of Penal Code section 288, subdivision (b)(1). The petition was based on an April 3, 2007
incident during which then 14-year-old appellant had allegedly restrained and
sexually assaulted a five-year-old female child by forcibly removing her
underpants and then licking and placing his fingers in her vagina. The petition alleged that if the charges were
sustained, appellant might be required to register pursuant to Penal Code
section 290. On September 19, 2007,
after a contested jurisdictional hearing, the juvenile court found beyond a
reasonable doubt that appellant had committed the two alleged sex
offenses. The matter was transferred to
Solano County for disposition.
On
October 18, 2007, the Solano County juvenile court held a contested
dispositional hearing on both the May 2007 Solano County violation of probation
petition and the June 2007 Santa Clara County petition. The court continued appellant as a ward, and
committed him to the custody of the probation department for placement in a
suitable foster home or institution. As
part of the terms and conditions of his probation, appellant was ordered to
attend mandatory sex offender counseling and to comply with treatment orders
issued by the sex offender program.
For
the next three years, appellant was placed in three different residential group
homes. He spent 17 months in a Stockton
group home, where he participated in individual, group, and family therapy
sessions, and worked on sex offender treatment assignments. After he was terminated from that home, he
spent six months in a Fair Oaks group home, where he participated in
individual, group, and sex offender counseling. After he was terminated from
the second group home, appellant was placed in a third group home, Martins’
Achievement Place (Martins), a facility providing juvenile sex offender
treatment programs, considered “therapeutically strong,†and one of “the most
restrictive residential group home settings for sex offenders.â€
B. Proceedings Leading to DJF Commitment
On
April 9, 2010, about one month after his placement at Martins, the probation
department received a phone call from a Martins representative stating that the
facility was submitting a seven-day notice of termination. Appellant’s therapist reported that then
17-year-old appellant was having fantasies about raping some of the female
staff members. During the night, when
all of the residents were sleeping, appellant would stay awake if there was a
female staff member working. The group
home staff was greatly concerned about appellant’s nighttime behavior. Additionally, appellant was not participating
in his program and appeared to be solely motivated by sex. On April 14, 2010, the probation department
filed a supplemental petition pursuant to section 777, subdivision (a)(2), alleging
that appellant had violated probation by failing his placement at Martins and
being terminated from that program on April 13, 2010.
1. Violation of Probation Hearing
At
a June 2010 contested violation of probation hearing, the juvenile court heard
testimony from several witnesses:
Crystal Durrette, appellant’s therapist at Martins; Michael James
Galindo, the lead clinician program manager at the Stockton group home; S.E.
who had known appellant since birth; and appellant’s mother.
Testifying
for the prosecution, appellant’s therapist Crystal Durrette specified the
reasons that led to the issuance of the notice of termination. Appellant had been discharged because the
staff had “some concerns about his nighttime behaviors.†Appellant “reported that he was sleepwalking
a lot, but the female staff felt like he was trying to have time alone with
them.†The big concern was that
appellant’s conduct was only happening while the female staff was on night
duty.
conversations with appellant during therapy.
Appellant “just wasn’t very vested†in participating in assignments or
daily activities. He had done well in
individual therapy sessions identifying what was holding him back in treatment,
and he appeared to be forthcoming about his thoughts and fantasies. However, he had difficulty with “the problem
solving portion†and “not wanting to invest in solutions as much.†Durrette believed appellant should be
discharged from the program based on her dealings with appellant, his overall
behavior and participation in therapy, and after discussions with her
supervisor.
Durrette
also testified that after the issuance of the notice of termination, appellant
and his family attended a meeting at Martins.
At that meeting, some new plans were developed regarding appellant’s
counseling and treatment. The staff was
considering placing appellant in housing with nighttime supervision by male
staff only. After the family session,
appellant seemed more motivated and the staff talked about giving him another
chance to see if he was willing to engage in the treatment program.
In
response to the court’s questions, Durrette testified that there were six boys
in each home. They were given an
orientation and told the rules of the house, which included staying in their
rooms at night. Appellant’s reported
nighttime behavior represented a safety issue to himself, the staff, and the
other juveniles, because there was only one staff member on shift at night.
At
the conclusion of Durrette’s testimony, appellant made a
on the ground that the Martins nighttime staff members had not been called to
testify as witnesses. The prosecutor
opposed the motion on the ground that the termination from placement was not
based solely on appellant’s nighttime behavior, but also on appellant’s therapy
conversations with Durrette. The court
rejected appellant’s argument that the court was required to hear from everyone
as to his problems in the group home.
The court explained that at issue was appellant’s termination from
Martins, and that Durrette, as the program representative, could testify that
the termination was based on her opinion, her own observations, and the
information she had received from the Martins staff. The witness was not proffering an expert
opinion that appellant had violated probation.
She was only testifying as to her knowledge of “her interactions, her
review of staff, her discussions with staff and statements†made by appellant
to her, and she was available for cross-examination. The court additionally rejected appellant’s
argument that Durrette’s information was not reliable or credible. The court found that Durrette, “who is
involved and knows staff and is intimately involved in weekly training sessions
with them and knows what they are trained with on a weekly basis [does not]
need to know whether they have an undergraduate degree to determine whether or
not [they are] reliable and credible.
That extends the right to cross-examination beyond that which the
Welfare and Institutions Code contemplates.â€
Based on Durrette’s testimony, the court found the prosecution had
presented a prima facie case that appellant had violated probation.
Appellant’s
witnesses testified regarding his history of sleepwalking. Michael James Galindo testified that during
appellant’s stay at the Stockton group home there were two reported incidents
of perceived sleepwalking that occurred on the night of August 15 and in the
early morning of August 16, 2008; “[s]taff seemed to think he was
sleepwalking.†When asked about the
incidents, appellant did not have any memory of them. S.E. testified that she knew appellant from
his birth and had lived with him on different occasions, when appellant was
one, four, 10, and since he was 14. S.E.
recalled appellant’s sleepwalking started “when he had first lived with us when
he was about two and a half, in that time frame.†She saw the sleepwalking behavior “later on
when he lived with [her] again at age ten.â€
Appellant’s mother testified that during the time that appellant lived
with her (his birth through age 14), appellant, at all ages, would occasionally
sleepwalk. When questioned about the
incidents, appellant did not have any recollection of them.
After
argument by counsel, the juvenile court found appellant had violated
probation. The court explained: “There is no question that the minor was
placed. He is under an order to
participate in the program. He is to
remain in that placement and obey all reasonable directives of the placement
staff and the probation department and he is not to leave that program without
the permission of the court or the probation department. [¶] . . . [¶] Ms. Durrette testified to the minor’s
progress or lack thereof in the program and indicated that there were the
concerns that were raised in the minor’s therapeutic context, again, the
specifics of that were not fleshed out further by virtue of [the minor’s]
objection,[
title="">[5]]
but nonetheless there w[ere] the concerns regarding that coupled with minor’s
behavior in the context of female staff.
[¶] . . . [A]s to
that she stated quite clearly in her testimony . . . and my notes
reflect the collective decision of the supervising staff to discharge the
minor. [¶] Probation was then
[notified] of the intention to discharge the minor and probation then went to
the group home and placed the minor under arrest and removed him from the
program based on that notice from Martin’s Achievement that it was their
intention to discharge the minor from the program. [¶] It’s also apparent to the court that
Martin’s Achievement continued to work with the minor and was nevertheless
apparently willing to work with the minor based on cooperation of the minor’s
family who came and met with them and a revision in the treatment plan. [¶] But . . . there is no
dispute that the minor received a seven-day notice and when the probation
department got that seven-day notice they acted and placed him under arrest. [¶] And was that premature or not? The
question is not really one for the court to second guess. The minor was in the program, received a
notice of discharge and probation placed him under arrest based on that. [¶] The evidence to discharge the minor was
based, again, on the concerns expressed by [Ms. Durrette] who testified,
[about] the minor’s progress in the program or lack
thereof. . . . [¶]
Frankly, under the standard of preponderance of the evidence, the People have
met their burden. . . .
[T]his has really now become a dispositional issue because there is
clearly a balance that the court has to achieve between [the minor’s]
appropriateness for continued supervision in the community or not. [¶] But, under the preponderance of the
evidence standard, has the prosecution met its burden? I do believe they have. [¶] . . . [W]hat’s before the court
today was established by the testimony of Ms. Durrette, notwithstanding the
testimony of the other witnesses who made efforts to explain in part the minor’s
. . . ‘sleep walking behavior.’
[¶] But Martin’s [A]chievement home has an obligation to keep the minor
and its residents sa[f]e and that behavior was contrary to the rules and in the
eyes of that program placed both the minor and [its] other residents at risk
and that is a factor that the court has to consider notwithstanding.â€
2. Depositional Hearing
Before
the dispositional hearing, senior deputy probation officer Nilsa Carter filed a
report recommending that appellant be committed to DJF. She provided, in pertinent part, the
following assessment: “[Appellant] has
failed three residential juvenile sex offender treatment programs. At his first placement, where he spent
seventeen months in juvenile sex offender treatment, [appellant] made minimal
progress due to his willingness to discuss his offense and family history, as
well as disclose prior victims and sexual fantasies. However, he displayed several concerning
behavior issues and he was ultimately terminated after it was discovered he had
been viewing pornography via the internet for three months while given the
opportunity to complete school work.
While at his second placement, [appellant] was terminated due to
breaking into the staff office to view pornography on a computer, threatening
to rape a female staff [member] as a form of retaliation, and his over-all lack
of commitment to change his deviant sexual behaviors. Finally, while at his third, most recent
placement, [appellant] was terminated for disclosing fantasies about raping their
staff member[s] causing great concern to the group home because [appellant]
would stay awake throughout the night while the female staff was working. Additionally, . . . [appellant] was
not participating in his over-all program, and he appeared to be solely
motivated by sex. [¶] According to Dr.
[Kimberely] Smith’s evaluation dated 12/9/09, ‘[appellant] has a poor
understanding of his risk factors or risk management strategies. He can[not] adequately identify triggers,
thinking errors, high risk situations, or offense justifying attitudes despite
two years of residential treatment.
There is some degree of internal conflict and distress regarding the
offenses but it appears to be a result of a clear desire to avoid the
consequences of reoffending.’ [¶] Dr.
Smith’s assessment continues to be an accurate assessment, as evidenced by
[appellant’s] comments during the dispositional interview regarding his current
violation of probation. [Appellant] did
not dispute failing to participate fully in the program. However, he minimized his placement failure
by stating he was ‘terminated due to sleepwalking.’ [Appellant] continues to either be unwilling
to accept responsibility for his lack of motivation to make positive changes or
he lacks the ability of insight regarding why he continued to fail residential
juvenile sex offender (JSO) treatment, despite being offered intensive JSO
treatment for the past two and a half years.
Additionally, [appellant] expressed concern with not being able to ‘get’
the treatment while in [DJF], but feeling he would appear to have ‘gotten it’
because he would behave due to his fear of being physically restrained by [DJF]
staff.†Carter also reported that “[t]he
Juvenile Sexual Offense Recidivism Risk Assessment Tool- II (JSORRAT-II) was
completed on 6/14/10. According to the
state mandated instrument, [appellant was] assessed as a Moderate-High Risk of
sexual recidivism,†“which [was] the highest outcome score.â€
In
her report, Carter discussed DJF’s programs and treatments that would be
available to appellant as explained by a DJF intake and court liaison. If committed to DJF, appellant would be
initially considered for parole in four years and retained until he was 25
years of age, which would give him enough time to complete DJF’s programs and
allow for parole supervision services.
“Due to [appellant’s] history of mental health needs, [the DJF officer]
stated a Diagnostic Evaluation will be completed to determine whether
[appellant] would be housed in their Sex Behavior Treatment Program or in the
Mental Health Program. If [appellant’s]
mental health needs are evaluated as needing a higher level of care, he may be
placed into the residential Mental Health Program while currently receiving the
Sex Behavior Treatment Program.†DJF
would also provide appellant with educational services to assist him in
completing his high school requirements, and additional continuing education,
training opportunities, and college courses.
Carter concluded that after a lengthy and in-depth review of all
available options for appellant, DJF commitment was deemed the most viable
option, as it would provide the most comprehensive treatment plan and community
safety.
At
the July 2010, contested dispositional hearing, the prosecutor submitted
on the probation department’s
recommendation of commitment to DJF.
Appellant testified on his own behalf and called several witnesses: Lynn Carr, the assistant executive director
and educational director at Martins; Crystal Durrette, a licensed clinical social
worker and appellant’s therapist at Martins; his mother; and probation officer
Nilsa Carter.
Lynn
Carr testified that even though appellant would be 18 two days after the
hearing, she believed he was suitable and it would be reasonable to return him
to Martins. There was a place
immediately available in a house with older boys and none younger than 17 years
old. The staff was predominately male
with only one female staff member whose partner was a male staff member. There were four additional roving staff
members who had been added in the last two months. However, Carr confirmed that appellant would
only be able to stay at Martins for one year, until the day before his 19th
birthday and then he would have to be discharged. Carr was aware that appellant had been
participating in sex offender treatment for about three years and that in
Durrette’s opinion appellant had made very little progress in treatment. Carr also would say that appellant had made
either minimal or no progress while in treatment in two previous group
homes. In order for appellant to make
enough progress to be discharged in a year, he would have to attend at least
two individual therapy sessions per week and a determination would have to be
made if he needed to be in more groups.
Carr believed it was possible that appellant would reach a point in a
year where he could be released into the community. However, it would be appellant’s investment
and commitment that would determine whether he succeeded at the program.
Crystal Durrette
testified that after the issuance of the notice of termination, she had a
meeting with appellant’s family members and appellant. They discussed how to keep appellant safe in
the program for as long as he was at the facility. After the family discussion, Durrette met
with Lynn Carr, and Stacey Small, the program’s director, and it was decided
“to give [appellant] another chance and see if he would be willing to do the
program.†At the time of appellant’s
actual removal from the facility, Durrette believed appellant could possibly
benefit from staying at Martins if he were motivated to participate in
treatment. Appellant would have to
participate in “a lot of therapy . . . individual and group,†and “a lot
more group therapy in a shorter amount of time, so he would have to be really
committed to doing all the work.†In her
discharge report, Durrette “recommended that [appellant] . . . be
placed in a secure treatment facility with a high level of supervision which
offers juvenile sex offender treatment and treatment for mental health issues,
and that it may also be important to limit his contact with female staff.†Durrette believed Martins could fulfill those
requirements but “it’s all going to come down to [appellant’s] motivation for
treatment.†In terms of security and
public safety, appellant would be monitored 24 hours a day at Martins. Durrette believed it was possible that in a
year appellant might be in a place where he could be safely returned to the community
to participate in outpatient sex offender counseling and treatment. However, it was very difficult to predict
that outcome.
Durrette
confirmed that during the time she spent with appellant, she was experiencing
some of the same issues that were noted in the reports from his other group
homes. Appellant was minimally, if at all, participating in his treatment. Additionally, there were incidents at Martins
where appellant did act out physically, hitting walls and slamming things. There was nothing in appellant’s past
behavior that made Durrette confident that appellant would participate more in
treatment if allowed to return to Martins.
If appellant was not motivated, then a different treatment plan would
not work as he would continue to have the same thought processes and the same
patterns, and he would not be safe to release.
Because he would have a shortened time to make positive changes,
appellant would “really have to be motivated†throughout the treatment program
at Martins.
Nilsa
Carter testified that in reaching her recommendation, she relied on
Dr. Smith’s psychological evaluation of appellant and information
regarding appellant’s termination from Martins.
Carter also interviewed appellant at juvenile hall regarding the
recommendation to place him at DJF.
Appellant did not believe he could get competent sex offender counseling
at DJF because he would not understand or get concepts that they were trying to
teach him. He was also fearful of being
restrained by DJF staff. At the end of
the interview, appellant said, “This may sound stupid, but I am ready
now.†Carter conceded that appellant
could have meant he had not applied himself to counseling and treatment in the
past and he was now ready to make that sincere effort.
Before
making her recommendation Carter contacted a DJF representative who sent her a
two-page document generated by DJF. The
document listed DJF’s staff (psychologists and senior client counselors, case
managers, and case specialists) and explained the type of treatment appellant
would receive at DJF.
name="_ftnref6" title="">[6] Carter was aware of ongoing litigation
concerning DJF and specifically the sex behavior treatment program based on a
letter she had received from appellant’s counsel. However, she did not receive any documents
regarding that litigation that had been sent by appellant’s counsel two days
before the dispositional hearing. Thus,
Carter was not aware at the time she made her recommendation that the most
recent special master report regarding the DJF program had found that DJF
psychologists continued to fail to provide the requisite number of one-on-one
treatment hours with minors in this program.
She also was not aware that an independent special master had found that
the sex behavior treatment program staff did not follow a standardized
treatment program approach which had led to a type of inconsistency that had
been a problem for the program in the past.
Carter also did not have information about violent altercations at DJF.
After
hearing the new plan proposed for appellant at Martins, Carter would not change
her recommendation. She did not believe
anything would motivate appellant. She
was appellant’s assigned probation department officer for most of time that he
was in treatment in the prior group homes and she did not see any type of
progress. She actually saw him getting
worse. Carter based her opinions on her
conversations with group home staff and appellant’s actual treatment
providers. Carter met with appellant’s
social work clinicians at each group home every month.
Appellant’s
mother testified that since he had been removed from Martins and placed in
Juvenile Hall he had “turned a corner.â€
He said that he wanted to benefit from the treatment programs so that he
could go home. She believed that
appellant’s shift in attitude might contribute to a different result if he was
given another chance. She did not
believe that appellant was mature enough to deal with being housed with adult
men because he was not capable of defending himself and he would suffer physically
and emotionally. She felt appellant
would be more motivated if allowed to return to Martins because “the group home
sort of admitted making a tiny mistake in having him removed.†She admittedly told the probation department
representative that the Martins staff was not “ all that mature†in their
choices and they really could not answer her questions. However, if the Martin staff had made
changes, then “maybe it will work,†and “everyone will benefit from it.â€
During
his testimony, appellant admitted he had not put forth an acceptable level of
effort in his sex offender counseling treatment program while at Martins. However, since his removal from that program
and his detention in juvenile hall for three months, appellant now understood
that he needed help and if he did not get help he was going to be a danger to
himself and other people. Appellant also
admitted that three days before the dispositional hearing he had gotten into
trouble at juvenile hall. Until that
time, he had been following the rules at juvenile hall to the best of his
ability and had reached “step three,†with the highest step being four. The school incident was a “setback,†and he
returned to “step one.†The school
incident concerned appellant talking in class and reacting inappropriately when
he was corrected by his teacher.
Appellant was sent out of the class.
As he walked out, appellant said, “I don’t care anymore. I’m leaving in three days.†Appellant now recognized his teacher was
acting appropriately and he acknowledged regret and wrongdoing.
Appellant
admitted he had been saying he was prepared to change and to show it since the
first dispositional hearing, but that “really nothing [had] changed†since
then, and DJF was always a possibility and “a huge possibility†when he was
sent to Martins. At that time, the
juvenile court judge had told appellant, “This is it.†And, notwithstanding the judge’s statement,
appellant admitted he behaved in a way that led to his discharge. He had little motivation to do anything, he
was very lazy, he had all the time to do his work and he chose not to do it, he
did not participate in treatment, and he did not complete his assignments. When asked what would be different if the
court allowed him to return to Martins, appellant felt that this time it would
be easier for him to understand and recognize that he had made mistakes.
After
argument by counsel, the juvenile court committed appellant to DJF. In so ruling, the court stated it had “heard
all the evidence. I have read and
considered the social study report provided by the probation department. I have heard the arguments and I am prepared
to rule, and I am going to follow the recommendation of the probation
department. . . . [¶] I
was very impressed by the testimony of Crystal Durrette. I think she was in a difficult position as
far as her testimony, and I think she spoke very honestly that . . .
whether he could return to the community safely in one year . . . was
impossible to predict. If he was not
motivated and did not work, he would not be safe to return to the
community. [¶] He’s had plenty of
time. He’s squandered it, seriously
squandered it, and now he’s just out of time,
and I am not about to take the chance with innocent people in the public
suffering psychological and emotional abuse because he’s failed to do what he
should have done some time ago. [¶] So
at this point, the court is going to make the following orders: That the minor is currently a ward and priors
orders of the court have not been effective in his rehabilitation and
control. He’s to be continued as a ward
of [the] court and all previous orders not in conflict with the present order
can remain in full force and effect.
[¶] . . . The minor has been tried on probation in the
custody of his parents and has failed to reform. The welfare of the minor requires that
custody be taken from his parents and that the continuation of such custody
would be contrary to his welfare.
[¶] Reasonable efforts have been made to prevent or eliminate the
need for removal of the minor from his mother, but at this point it is simply
not possible for him to return home.â€
The court found appellant’s mental and physical condition and
qualifications were such as to render it probable that he would benefit by the
reformatory educational discipline and any other treatment provided by
DJF. Appellant was committed to DJF for
a maximum physical confinement period of four years. The court also ordered appellant to register
as a sex offender pursuant to Penal Code section 290 on his release from
DJF.
DISCUSSION
Court’s Finding that Appellant Violated Probation
Appellant
challenges the juvenile court’s finding that he violated probation on two
grounds: (1) the admission of Durrette’s
testimony regarding appellant’s nighttime behavior was an abuse of discretion
and violated his right to due process because it was inadmissible hearsay and
deprived him of the right to confront witnesses; and (2) there was otherwise
insufficient evidence to support the finding that he violated probation. We conclude appellant’s contentions are
unavailing.
Appellant presents
extensive arguments challenging the juvenile court’s admission of Durrette’s
testimony regarding appellant’s nighttime behavior at Martins. However, we need not address his contentions
as appellant has failed to demonstrate that the admission of the challenged
evidence was prejudicial error under any standard of review. (Chapman
v. California (1967) 386 U.S. 18, 24 [constitutional law error];
836 [state law error].) According to
appellant, absent Durrette’s hearsay testimony, there was no substantial
evidence that appellant violated probation.
We disagree. Durrette’s testimony
concerning her personal interactions with appellant during counseling sessions
was substantial evidence from which the juvenile court could conclude based on
a preponderance of the evidence that appellant violated probation by failing to
adequately participate in the sex offender
treatment program at Martins. (See
550, 555 (Pedro M.) [therapist’s
testimony “was sufficient . . . to sustain the juvenile court’s
finding that appellant had violated conditions of probation by not cooperating
in his sex offender treatment plan, the object of which was to lower his risk
of re-offendingâ€], disapproved on another ground in People v. Gonzales (2013) __ Cal.4th __, __ [2013 Cal.Lexis 1817 at
p. *49, fn. 6].) We are not persuaded by
appellant’s argument that Pedro M. is
factually distinguishable from this case and should not be relied on by this
court. Appellant argues he could not be
found to violate probation because despite his failure to adequately
participate in counseling, the Martins staff had reversed its decision to
terminate him and was willing to give him a second opportunity to succeed with
an alternative treatment plan. However,
whether appellant had violated the terms of his probation was a decision to be
made by the juvenile court and not the Martins staff. Appellant’s possible return to Martins was a
matter to be considered, and was considered, by the juvenile court at the
dispositional hearing.
name="_ftnref7" title="">[7]
to DJF
On direct appeal
and as the sole argument in his writ petition for habeas corpus relief,
juvenile court abused its discretion by committing him to DJF. We disagree.
Although
“juvenile proceedings are primarily ‘rehabilitative’ ([§ 202,] subd. (b)),
and punishment in the form of ‘retribution’ is disallowed (id., subd. (e)),†“[w]ithin these bounds, the [juvenile] court has
broad discretion to chose probation and/or various forms of custodial
confinement in order to hold juveniles accountable for their behavior, and to
Eddie M. (2003) 31 Cal.4th 480, 507.)
We are not persuaded by appellant’s citation to cases that “predate the
amendment of former . . . section 502 (now § 202) regarding the
purposes of the Juvenile Court Law.†(
49, 57.) “In 1984, the Legislature
amended the statement of purpose found in section
202. . . . It now
recognizes punishment as a rehabilitative tool and emphasizes the protection
and safety of the public. (Stats. 1984,
ch. 756, §§ 1, 2.) The significance
of this change in emphasis is that when we assess the record in light of the
purposes of the Juvenile Court Law [citation], we evaluate the exercise of
discretion with punishment and public safety and protection in mind. Such was not the case before 1984.†(In re
Lorenza M., supra, 212 Cal.App.3d
at pp. 57-58, fn. omitted.)
Pursuant
to section 734,
a juvenile court is authorized to commit a juvenile to DJF where it is fully
satisfied that DJF “with its specialized institutions and rehabilitative programs
tailored to the [juvenile’s] sophistication and need for security [citation],
offer[s] the promise of probable rehabilitative benefit.†(In re
Tyrone O. (1989) 209 Cal.App.3d 145, 153.)
As an appellate court, we review “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 have no power to judge the effect or
value of the evidence, to weigh the evidence, to consider the credibility of
witnesses or to resolve conflicts in the evidence or the reasonable inferences
which may be drawn from that evidence.â€
(In re Casey D. (1999) 70
Cal.App.4th 38, 52-53.)
Relying
on In re Jose T. (2010) 191
Cal.App.4th 1142, appellant argues the juvenile court’s comments at the
dispositional hearing in this case reflect that commitment to DJF was
“automatic,†without consideration of the effectiveness or appropriateness of
less restrictive alternative placements.
However, appellant’s reliance on Jose
T. is misplaced. In that case, the
juvenile court initially noted it had no problem with the appellant finishing a
treatment program that had accepted him back after he left without permission. (Id.
at p. 1147.) However, after the
court was reminded about a previously stayed commitment to DJF, the court
stated that appellant was going to be committed to DJF because the court
“usually [kept its] promises.†(
In setting aside the commitment to DJF and remanding for a new
dispositional hearing, our colleagues in Division Four explained: “The juvenile court’s statement at the time
of imposing the previously stayed [DJF] commitment on appellant indicates a
failure to conduct ‘a complete reassessment of dispositional issues in light of
then-prevailing circumstances,’ and therefore constituted an omission to
exercise ‘a discretion conferred and compelled by law.’ [Citation.]
All reports relating to appellant’s progress at [a community-based
program] were positive, and the probation department recommended his return to
the program. The juvenile court
expressed a willingness to send appellant back to [the program] before being
informed about the previously stayed [DJF] commitment. Its comment after being informed about the
previously stayed commitment . . . necessarily leads us to agree with
appellant that the disposition imposing that prior commitment was ‘automatic’
and thus, was error.†(
fn. omitted.)
Unlike
the situation in Jose T., the
juvenile court here reasonably concluded that Martins would not be an
appropriate or effective placement for appellant. At the time of the July 2010 dispositional
hearing, appellant was two days shy of his eighteenth birthday and could only
participate in Martins treatment program for one year. As opposed to a return to Martins for one
year, a DJF commitment would provide appellant with long-term, rehabilitative
programs in a structured environment, as recommended by the probation
department officer. Appellant argues the
juvenile court should have considered that he had only been at Martins for
little more than one month, his treatment plan had been revised, and the
Martins staff had rescinded their decision to terminate him. However, appellant fails to discuss the
testimony of the Martins staff, as well as his own testimony, confirming that
while appellant was at Martins he had not adequately participated in the sex
offender treatment program. The Martins
staff also was quite clear that a return to Martins would only be effective and
appropriate if appellant was motivated to comply with its treatment
program. The juvenile court was free to
reject the testimony of appellant and his mother that he would be motivated to
participate in treatment if allowed to return to Martins. The court in essence found that appellant had
been previously warned “where his conduct was leading. [His] failure to heed the warning indicated
he had not taken his rehabilitation and warnings regarding future conduct seriously. It demonstrates there had been no change in
attitude by [appellant.]†(
615; see In re Ronnie P. (1992) 10
Cal.App.4th 1079, 1090, fn. 8 [“a minor’s failure to heed such a warning
may be taken as some evidence of resistance to rehabilitationâ€].) By his argument, appellant asks us to reweigh
the evidence, and substitute our judgment for that of the juvenile court. We decline to do so. On this record, we see no abuse of discretion
in the juvenile court’s refusal to allow appellant to return to Martins. “Where the minor has previously failed in a
series of local programs . . . statewide confinement in the
structured setting offered by DJF may decisively outweigh other
considerations.†(In re Greg F. (2012) 55 Cal.4th 393, 418; see In re Martin L. (1986) 187 Cal.App.3d 534, 544 [“[c]ircumstances in
a particular case may well suggest the desirability of a [DJF] commitment
despite the availability of . . . alternative dispositionsâ€].)
name="_ftnref10" title="">[10]
We
also reject appellant’s argument that there was no substantial evidence that he
would probably benefit from a DJF commitment.
Although the juvenile court did not expressly comment on the matter at
the dispositional hearing, the court had before it evidence regarding the programs
then currently available at DJF. In its
commitment order, the juvenile court indicated appellant had an individualized
education program that would be furnished to DJF, and the court requested that
appellant “be considered for programming related to Sex Behavior Treatment
Program.†Thus, we are convinced that
“the juvenile court found it was probable [appellant] would benefit from being
committed to [DJF], because it anticipated [appellant’s] needs would be
addressed by programs offered at [DJF].
There is no requirement that the court find exactly how a minor will
benefit from being committed to [DJF].â€
(In re Jonathan T. (2008) 166
Cal.App.4th 474, 486.) Before accepting
a juvenile at DJF, it is the responsibility of the Director of the Division of
Juvenile Justice to determine if a juvenile “can be materially benefited by
[DJF’s] reformatory and educational discipline, and if [DJF] has adequate
facilities, staff, and programs to provide that care.†(§ 736, subd. (a).) “To determine who is best served†by DJF and
“would be better served by the State Department of Mental Health,†“the
Director of the Division of Juvenile Justice and the Director of the State
Department of Mental Health shall . . . confer and establish policy
with respect to the types of cases that should be the responsibility of each
department.†(§ 736, subd.
(b).) Concededly, the juvenile court did
not find that appellant had exceptional needs.
However, the probation department officer indicated in her report to the
juvenile court that due to appellant’s “history of mental health needs,†the
DJF staff would complete a diagnostic evaluation to determine whether appellant
would be housed in the DJF Sex Behavior Treatment Program or in the Mental
Health program. If appellant needed a
higher level of care, he might be placed in the residential Mental Health
program while concurrently participating in the Sex Behavior Treatment
Program. The juvenile court could—and
this court does—presume that, if DJF determines that appellant has exceptional
needs, such needs will be met. (Evid.
Code, § 664 [presumption that official duty has been regularly
performed].) We are not persuaded by
appellant’s argument that he is entitled to reversal or habeas relief because
DJF’s sex offender treatment and other rehabilitative care programs and
facilities are deficient in certain respects.
If appellant believes DJF is “unable to, or failing to, provide
treatment consistent with [s]ection 734,†he may seek relief in the juvenile
court. (See § 779;
name="_ftnref11" title="">[11] see also
1314, 1322-1323 [juvenile court may entertain motion to modify or vacate DJF
commitment where there is a showing under section 734 that the ward is unlikely
to benefit from DJF’s education and treatment].)
III. Entitlement to Jury Trial on Underlying Sex Offenses Before
Imposition of Sex Offender
Registration and Residency Restriction
After appellant’s
adjudication for violating Penal Code section 288 and his commitment to DJF,
the juvenile court was required to direct appellant to register as a sex
offender pursuant to Penal Code sections 290, 290.008, and 290.016.
re G.C. (2007) 157 Cal.App.4th 405, 409, 411.) As a consequence of his status as a
registered sex offender and after his release from DJF, appellant must comply
with the residency restriction in Penal Code section 3003.5, subdivision (b)
(hereafter also referred to as Jessica’s Law).
Appellant
argues he is entitled to a jury trial on the underlying sex offenses giving
rise to his juvenile adjudication before he can be required to register as a
sex offender and comply with the residency restriction in Jessica’s Law. According to appellant, once his wardship
ends, the challenged sanctions, whether punitive or regulatory, will no longer
have any rehabilitative effect. Instead,
“these sanctions become adult sanctions for the remainder of [his] life. Because they are lifetime requirements, [he]
is entitled to the same procedural protections that an adult receives in a jury
trial for determining factual allegations that result in these sanctions.â€
unavailing.
“ ‘There
is a well-understood distinction between a juvenile wardship adjudication on
the one hand, and adult criminal proceedings leading to a “felony
conviction.†’ [Citation]. It is settled that while certain
constitutional protections enjoyed by adults accused of crimes also apply to
juveniles (e.g., notice of charges, right to counsel, privilege against
self-incrimination, right to confrontation and cross-examination, double jeopardy,
proof beyond a reasonable doubt), ‘. . . the Constitution does not
mandate elimination of all differences in the treatment of juveniles.’ [Citation.]
Thus, juveniles enjoy no state or federal due process or equal
protection right to a jury trial in delinquency proceedings.†(People
v. Fowler (1999) 72 Cal.App.4th 581, 585 (Fowler); see Schall v. Martin
(1984) 467 U.S. 253, 263; McKeiver v.
Pennsylvania (1971) 403 U.S. 528, 545-547, 550 [plur. opn. of Blackmun,
J.], 551-552 [conc. opn. of White, J.] (McKeiver);
People v. Nguyen (2009) 46 Cal.4th
1007, 1019 (Nguyen);
6 Cal.4th 1212, 1225; People v. Superior
Court (Carl W.) (1975) 15 Cal.3d 271, 274; In re Daedler (1924) 194 Cal. 320, 332.)
We
find instructive our Supreme Court’s decision in Nguyen, supra, 46 Cal.4th 1007.
In that case, the court upheld a provision of the Three Strikes law,
allowing that “certain serious prior judicial adjudications should serve as
‘prior felony convictions’ for the purpose of enhancing sentences for
subsequent adult felony offenses.†(
argument that because he had no right to a jury trial in the prior juvenile
proceeding, the Sixth and Fourteenth Amendments, as construed in
466, barred the use of the resulting juvenile adjudication to enhance his
maximum sentence in his current adult criminal proceeding. (Nguyen,
supra, 46 Cal.4th at pp. 1014-1015.)
In rejecting Nguyen’s claim, the court explained its understanding of
the United States Supreme Court’s decision in McKeiver, supra, 403 U.S.
528 as follows: “The United States
Supreme Court has left no doubt of the importance of the jury trial guarantee,
among other due process and fair trial protections, in the formal, fully
adversary, and fully penal context in which one is convicted of, and sentenced
for, a crime committed as an adult. . . . [¶] But the [McKeiver] court struck a delicate balance as to the constitutional
treatment of juveniles alleged to have violated the
both the stigma of adjudged criminality and the significant loss of liberty by
confinement in a correctional institution if the allegations prove true. Thus, ‘[t]he same considerations that demand
extreme caution in factfinding to protect the innocent adult apply as well to
the innocent child.’ [Citation.] Accordingly, the highest standard of factual
certainty, proof beyond a reasonable doubt, attaches equally to adult and
juvenile proceedings. [Citation.] Similar considerations have led the court to
insist that most other procedural protections available to accused
adults—including the right to counsel (appointed if necessary), notice of
charges, confrontation and cross-examination, and protection against compelled
self-incrimination and double jeopardy—be equally available to juveniles
subject to adjudication of criminal conduct.
[Citations.] [¶] The court’s decision
in McKeiver not to find a
constitutional jury trial right in juvenile proceedings reflected its concern
that the introduction of juries in that context would interfere too greatly
with the effort to deal with youthful offenders by procedures less formal and
adversarial, and more protective and rehabilitative—at least to a degree—than
those applicable to adult defendants.
[Citations.] But the
absence of a right to trial by jury did not appreciably undermine
in juvenile cases.†(
pp. 1022-1023.) “Justice Blackmun
deemed it incorrect to say that ‘the jury is a necessary component of accurate
factfinding’ (McKeiver, supra, 403
U.S. 528, 543 (plur. opn. of Blackmun, J.)), and further opined that ‘[t]he
imposition of the jury trial on the juvenile court system would not strengthen
greatly, if at all, the factfinding function . . .’ [
the function of the jury is to find facts, that body is not necessarily or even
probably better at the job than the conscientious judge.’ (Id.
at p. 551 (conc. opn. of White, J.).)â€
(Nguyen, supra, at
p. 1020.) In the intervening years,
the United States Supreme Court “has not disturbed McKeiver’s determination that juvenile adjudications of criminality
are constitutionally fair and
reliable even though the Constitution does not require jury trials in juvenile
proceedings.†(Nguyen, supra, at p. 1024; see Schall v. Martin, supra, 467 U.S. at p. 263.)
The
Nguyen court’s decision, together
with its discussion of McKeiver,
requires us to conclude that a juvenile adjudication, “obtained pursuant to
due to the offender in [that] proceeding—specifically including the right
to proof beyond a reasonable doubtâ€â€”is “sufficiently fair and reliable, without
the right to a jury trial,†to mandate a juvenile offender to register as a sex
offender and comply with the residency restriction in Jessica’s Law. (Nguyen,
supra, 46 Cal.4th at pp. 1023, 1024.)
Contrary to appellant’s contention, the “collateral impact†of the sex
offender registration law and the residency restriction in Jessica’s Law
arising from the adjudication alone “does not change the fundamentally
different nature of juvenile and adult court proceedings†(In re Myresheia W. (1998) 61 Cal.App.4th 734, 741), and has no
affect “on the adjudication process in the juvenile court†(
nearly 80 [now 90] years of precedent beginning with In re Daedler[, supra,]
194 Cal. 320 . . . only the California Supreme Court can now consider
the question whether the California Constitution confers a right to a jury
trial in juvenile court proceedings.†(
We
conclude by noting that when the Legislature and the voters of the State of
California decided that certain juveniles should be required to register as sex
offenders and comply with the residency restriction in Jessica’s Law, there was
no additional provision allowing for jury trials in juvenile proceedings. In the absence of “constitutional constraints
. . . , [a]ny meaningful response to the arguments advanced by
[appellant] must come from the†Legislature or the electorate. (People
v. Smith, supra, 110 Cal.App.4th at p. 1081.)
DISPOSITION
The dispositional
order is affirmed. The petition for writ
of habeas corpus is summarily denied.
_________________________
McGuiness,
P.J.
We concur:
_________________________
Pollak, J.
_________________________
Jenkins, J.
POLLAK, J., Concurring.
I
agree in all respects with the lead opinion.
I write simply to amplify footnote 15, to point out that the court also
has not considered whether the imposition of a lifetime registration
requirement, with the potential consequence of prohibiting the person from ever
living within 2000 feet of a school or park, on a person whose offense was
committed as a minor, constitutes cruel and unusual punishment in violation of
the federal or state constitutions. (Cf.
Miller v. Alabama (2012) __ U.S. __
[132 S.Ct. 2455]; Graham v. Florida (2010)
__ U.S. __ [130 S.Ct. 2011]; People v.
Caballero (2012) 55 Cal.4th 262.)
_________________________
Pollak,
J.
name="_ftn1" title="">[1]
Because appellant was only 14 years old when he committed acts in violation of
Penal Code section 288, his juvenile adjudication would not constitute a
predicate offense in any potential civil commitment proceeding under the
Sexually Violent Predator Act (SVPA).
(Welf. & Inst. Code, § 6600, subd. (a)(1), (b), (g) [prior
juvenile adjudication of a sexually violent offense may constitute a prior
conviction if, among other things, “[t]he juvenile was 16 years of age or older
at the time he or she committed the prior offenseâ€].) Consequently, we do not address appellant’s
argument that he is entitled to a jury trial because his juvenile adjudication
would qualify as a predicate offense under the SVPA.
name="_ftn2" title="">[2]
This court consolidated the direct appeal with appellant’s petition for writ of
habeas corpus.
