In re William Y.

Filed 6/25/08 In re William Y. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Yolo)

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William Y., a ward of the court for violating Penal Code section 243.4, subdivision (a), sexual battery, was committed to what is now the Division of Juvenile Facilities (DJF) of the California Department of Corrections and Rehabilitation, formerly known as the California Youth Authority. On appeal, he contends the commitment was an abuse of the juvenile courts discretion because no evidence shows that less restrictive alternatives were inappropriate, and legislation enacted after his commitment requires us to vacate the order and remand for a new disposition hearing. We shall reject the claims and affirm the order of commitment.

DISCUSSION

I

To justify a DJF commitment, there must be evidence in the record (1) demonstrating probable benefit to the minor, and (2) supporting a determination that less restrictive alternatives are ineffective or inappropriate. (In re Teofilio A. (1989) 210 Cal.App.3d 571, 576.) The juvenile courts decision to commit a minor to DJF will be reversed on appeal only upon a showing that the court abused its discretion in making the commitment. (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.)

At the time of appellants latest commitment, he had turned 18 years old and had the following record:

In January 2000, he pled no contest to second degree burglary in exchange for the dismissal of two counts of continual sexual abuse of a child, alleged to have occurred on or about March 16, 1995, through March 16, 1997, and February 17, 1997, through February 17, 1998.

Prior to the disposition on the burglary adjudication, he pled no contest to exhibiting a deadly weapon, a charge contained in a separate petition. He was placed at EEs group home.

In September 2000, appellant absconded from EEs group home. He was apprehended in February 2002. In March 2002, he pled no contest to absconding.

In May 2002, he was placed at the Mathiot group home, but absconded after only a few weeks. He later admitted absconding from the Mathiot group home, and was again placed in EEs group home.

In September 2002, he admitted absconding from EEs group home. He was placed in juvenile hall and was ordered to complete a sex offender treatment program. In February 2003, he was released from juvenile hall, but remained on probation, and was ordered, among other things, to complete the sex offender treatment program.

In October 2003, appellant admitted violating his probation by being disruptive at school.

In November 2003, appellant pled no contest to possessing a short-barreled shotgun and exhibiting a firearm. In December 2003, he was committed to DJF. He was paroled in December 2004.

In November 2005, he was charged with numerous crimes, including six sex offenses alleged to have occurred from May 6, 2000, through November 3, 2003. He entered a negotiated plea of no contest to a charge of sexual battery, and the remaining counts (including witness intimidation, three counts of lewd acts on a child under 14 years of age, and two counts of oral copulation with a person under 18 years of age) were dismissed.

At the dispositional hearing, DJF employee Joseph Antenucci testified as follows: Based on his review of appellants entire file, including a report by appellants parole officer, Antenucci concluded appellant had performed well at DJF, as shown by his being paroled on his target date. Antenucci noted that while at DJF, appellant completed counseling on gang awareness, anger management, substance abuse, and victim awareness. At DJFs Humboldt facility, appellant attended a sex offender treatment program for several weeks; but based on his having a medium sex offender score, his committing offenses not being sexually related, and there being wards more in need of the sex offender program, the staff determined it was unnecessary for him to be retained in the program and terminated his participation. Antenucci opined appellant had performed well while on parole, as evidenced by his having passed several drug tests, his working, and his going to school. In Antenuccis view, if appellant were recommitted to DJF, he would not qualify for DJFs sex offender programs at Preston or Humboldt because the committing offense (sexual battery) was deemed a less serious sex crime and because his performance while at DJF was acceptable. Antenucci stated, however, that appellant could be sent to DeWitt Nelson, where he could obtain vocational training and be placed in a program which offered sex offender treatment.

Dr. Amy Eargle, a clinical psychologist, evaluated appellant and concluded he could be placed in an outpatient treatment program that would meet his needs--a program that DJF did not have. Eargle opined that appellant had performed reasonably well in outpatient therapy until his behavior had become a problem.

On the other hand, Kathleen Egbert, a deputy probation officer, recommended that appellant be recommitted to DJF because he had not completed a sex offender treatment program and remained a threat to the community.

In recommitting appellant to DJF, the court observed the record was replete with evidence that it had been extremely difficult in the past to provide appellant with treatment in a noncustodial or outpatient setting because he repeatedly absconded from placements. The court concluded that although appellant performed well in a highly structured environment, he presented a serious danger to the community based on his past violent criminal conduct, his gang involvement, and his history of sexual molestation.

Appellant contends the record does not support a finding that a placement less restrictive than DJF would be inappropriate. He argues that both his parole officer and Dr. Eargle could have had appellant placed in an outpatient treatment program, that the probation officer had not investigated such programs, and that his prior performance on parole had been quite satisfactory. We are unpersuaded.

Appellant had not completed a sex offender program as required. His involvement in sexual molestation was more serious than was known at the time of his first DJF commitment, as evidenced by charges involving molestation of his nephew, which did not come to light until appellant was on parole after the first DJF commitment. He repeatedly absconded from various nonsecure placements, thereby not completing his treatment plans. He had been a member of a criminal street gang and was prone to carrying dangerous weapons, as evidenced by his two pleas to exhibiting a deadly weapon and his plea to possessing a sawed-off shotgun.

On this record, the juvenile court reasonably determined that without additional rehabilitative treatment that could be guaranteed only if appellant were in a secure setting, he remained a serious risk of reoffending and, thus, a continuing danger to children and society in general. Therefore, the court did not err in committing appellant to DJF.

II

Appellant was recommitted to DJF in February 2006 for violating Penal Code section 243.4, subdivision (a), sexual battery.

Operative in 2007, Welfare and Institutions Code section 731^[1]was changed to provide, in part, that a ward of the court may be sent to DJF if the ward has committed an offense described in subdivision (b) of Section 707 and is not otherwise ineligible for commitment to [DJF] under Section 733. Operative in 2007, section 733 was changed to provide that a ward shall not be committed to DJF if the wards crime is not described in subdivision (b) of Section 707, unless the offense is a sex offense set forth in paragraph (3) of subdivision (d) of Section 290 of the Penal Code.

Appellant contends that because the offense for which he was recommitted to DJF in February 2006 is not an offense described in subdivision (b) of section 707, or in subdivision (d)(3) of former Penal Code section 290, he is entitled to retroactive benefit of sections 731 and 733 and, thus, to have his commitment reversed. His argument relies on In re Estrada (1965) 63 Cal.2d 740 (hereafter Estrada) and similar adult criminal cases which hold that when new legislation reduces the punishment for a criminal offense, the reduced punishment is applicable to all convictions for the offense which are not yet final, unless the new law states otherwise. (Id. at p. 748.)

The argument is not persuasive for two reasons.

Estrada and its progeny are not applicable because sections 731 and 733 do not reduce the punishment for a crime. They simply exclude a DJF commitment for certain offenses--a commitment that is not considered punishment, but is for the purposes of treatment, rehabilitation, and public protection. ( 202; see In re Aline D. (1975) 14 Cal.3d 557, 567; In re Michael D., supra, 188 Cal.App.3d at p. 1396.)

In addition, changes to the statutory scheme make it readily apparent that the Legislature did not intend for sections 731 and 733 to apply retroactively to a DJF commitment prior to the effective date of those sections. This is so because, section 731.1, also operative in 2007, provides that upon the recommendation of the chief probation officer of the county, a court that had already committed a ward to DJF for an offense not listed in subdivision (b) of Section 707 or in subdivision (d)(3) of former Penal Code section 290, may recall that commitment if the ward remains confined in a DJF facility on or after September 1, 2007, and convene a recall disposition hearing for the purpose of ordering an alternative disposition for the ward that is appropriate under all of the circumstances prevailing in the case. ( 731.1, emphasis added.)

Thus, appellant is not entitled to a change in his commitment to DJF unless (1) the chief probation officer recommends such a change, and (2) the trial court exercises its discretion to recall the DJF commitment and decide whether an alternative disposition is more appropriate. Appellant has not shown that these prerequisites have occurred.

DISPOSITION

The order committing appellant to DJF is affirmed.

SCOTLAND, P.J.

We concur:

ROBIE , J.

BUTZ , J.

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^[1] Further section references are to the Welfare and Institutions Code unless otherwise specified.