In re Juan E.

Filed 5/16/08 In re Juan E. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Jon N. Kapetan, Judge.

Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Michael A. Canzoneri and Maggie Krell, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Appellant Juan E. challenges the dispositional order committing him to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (YA), with a maximum term of confinement of eight years and two months. He argues that the commitment order is not supported by substantial evidence of probable benefit to him. Also, he contends that the commitment must be recalled and that he is entitled to a new dispositional hearing because he is entitled to the benefit of recent amendments to Welfare and Institutions Code sections 731 and 733.^[1] Neither argument is persuasive. We will affirm.

FACTS

Appellant has one prior sustained juvenile wardship petition. In January 2005, the juvenile court found true an allegation that appellant violated Penal Code section 286, subdivision (c)(1), by sodomizing his four-year-old sister in the bathroom of their home. This offense was declared to be a felony with a maximum term of confinement of eight years. Appellant was placed in the custody of the probation department and ordered to complete a sex offenders treatment program. After completing a group home program, appellant was returned to his fathers home.

The current juvenile wardship petition was filed in April 2007, while appellant was still on probation. The current petition alleged that appellant violated Penal Code section 261.5, subdivision (b), by having consensual sexual intercourse with a 14-year-old female first cousin. The petition gave notice that the People intended to move for an increase of the maximum term of confinement by aggregating the terms of all previously sustained petitions. The unlawful intercourse occurred during the morning of April 23, 2007, at the cousins home. Appellant and the cousin exchanged text messages in which the cousin told appellant she was not going to school and was home alone. After appellant and the cousin had sexual intercourse, the cousins parents unexpectedly arrived home. Appellant hid in a closet but was discovered by his uncle. When confronted by a police officer about the incident, appellant admitted having sexual intercourse with his cousin and admitted knowing that she was 14 years old. After a contested hearing, the juvenile court found the allegation true.

The dispositional hearing on the current petition was held on June 22, 2007. The prosecutor argued that defendants conduct indicates that he is a serious danger to society and therefore a YA commitment is appropriate. Defense counsel argued that appellant could receive necessary counseling in Juvenile Hall. The court asked the probation officer, who had recommended a 90-day commitment to the Juvenile Electronic Monitoring Program in his disposition report, why the probation department did not suggest placement in the boot camp program or the Delta program. The probation officer replied that these placements were not suitable because appellants safety would be at risk if the other minors learned about the sexual offenses appellant committed (sodomy on his four-year-old sister and sexual intercourse with his 14-year-old cousin). The court explained its selection of YA as the proper placement, as follows:

The People have cited rule 4.421, subsection 1, 2 and 11. [] Further, the court finds section 8 to be applicable in that the manner in which the crimes were carried out indicates planning, sophistication and professionalism. [] Ive considered the age of the minor and previous delinquent history, as well as the circumstances and gravity of the events. [] The court finds the charges for disposition are Penal Code section 261.5(b), a misdemeanor. [] The maximum period of confinement, however, is eight years, two months. Credit shall be given for 247 days already spent in custody against the maximum period of confinement. [] The court previously admonished the minor as to the possibility of aggravating previously sustained petitions. [] Consecutive sentences shall be imposed in that the offenses were committed at different times and different places, or the crimes and their objectives were predominantly independent of each other, or the crimes involved separate acts of violence or threats of violence. [] Parent and/or guardians are incapable of providing or failed or neglected to provide maintenance, training or education for the minor. [] The minor has been tried on formal probation in the physical custody of a parent or guardian and failed to reform. [] [] [T]he court has considered all local less restrictive programs and forms of custody. Im fully satisfied theyre inappropriate dispositions at this time. [] The mental and physical condition of the minor is such as to render probable that the minor will benefit from the reformatory and educational discipline or other treatment provided by the Division of Juvenile Justice.

Subsequent to the dispositional hearing, the juvenile court twice denied motions to vacate or modify the commitment order.

DISCUSSION

I. The YA commitment was not an abuse of discretion; the court did not base its decision solely on the lack of suitable alternative placement.

Appellant contends the YA placement constitutes an abuse of discretion because the record lacks substantial evidence demonstrating probable benefit to him. He argues that the court selected YA placement solely because other placements, such as the boot camp program or the Delta program, were unsuitable. We disagree.

The juvenile courts placement decision is subject to review for abuse of discretion. In evaluating the record, we apply the substantial evidence test. (In re Teofilio A. (1989) 210 Cal.App.3d 571, 579.) The reviewing court indulges all reasonable inferences in support of the juvenile courts decision. (In re Asean D. (1993) 14 Cal.App.4th 467, 473.) The 1984 amendments to the Juvenile Court Law reflected an increased emphasis on punishment as a tool of rehabilitation and a concern for the safety of the public. (In re Michael D. (1987) 188 Cal.App.3d 1392, 1396.) A juvenile court is not required to attempt less restrictive alternatives before ordering a specific commitment. (In re Asean D., supra, 14 Cal.App.4th at p. 473.)

Here, the juvenile courts comments quoted above demonstrate that it did not select YA merely because less restrictive placements such as the boot camp program or the Delta program would not have been safe for appellant due to the nature of his crimes. Rather, in determining that a YA commitment was the appropriate placement, the juvenile court carefully considered the appellants past and current offenses, his failure to benefit from probation or from a sexual offender treatment program and his current needs. The juvenile court determined that the physical and mental condition of appellant is such that he would probably benefit from the reformatory and educational discipline at the YA. This determination is both reasonable and supported by the evidence. Appellant had completed a group home program and he was on probation when he committed the current offense. Thus, the record supports the juvenile courts conclusion that appellant failed to benefit from less restrictive placements. Furthermore, both of appellants crimes were committed upon younger members of appellants immediate and extended family. Clearly, he is a danger to others. The sex offender registration requirement resulting from the YA commitment does not render the placement decision unreasonable. Given the serious nature of appellants sexual offenses, we agree with respondent that appellant is a worthy candidate for registration as a sexual offender upon his release from YA, particularly since he committed his current offense while on probation for the former offense. Based on the entirety of the circumstances in this case, we conclude that there is substantial evidence of benefit to appellant. The juvenile courts commitment decision is reasonable. No error appears.

II. Recent changes to sections 731 and 733 are not retroactive; appellant is not entitled to a new dispositional hearing.

Appellant urges this court to retroactively apply recently enacted changes to sections 731 and 733 restricting the types of minors who are eligible for YA commitment to his case. We decline to do so because the Legislature clearly intended these changes to apply prospectively to cases occurring on and after September 1, 2007. Our determination that the changes to sections 731 and 733 do not apply retroactively is consistent with the reasoning and result reached by the Second District Court of Appeal in In re Brandon G. (2008) 160 Cal.App.4th 1076 (Brandon) and by the Fourth District Court of Appeal, Division 1, in In re Carl N. (2008) 160 Cal.App.4th 423 (Carl).

In 2007, the Legislature passed and the Governor signed into law legislation changing the eligibility criteria for committing wards to YA. (Stats. 2007, ch.175 (Sen. Bill No. 81),  19, 22, eff. Aug. 24, 2007; Stats.2007, ch. 257 (Assem. Bill No. 191),  2, eff. Sept. 29, 2007.)^[2] Sections 731 and 733 were revised to remove a YA commitment from the list of placement options unless the minors latest petition was either for an offense listed in section 707, subdivision (b), or for a specified sexual offense set forth in Penal Code section 290, subdivision (d)(3).^[3] ( 731, subd. (a)(4); 733, subd. (c).) Section 733 was repealed and reenacted; subdivision (c) of the new section 733 provides, This subdivision shall be effective on and after September 1, 2007.

Subdivision (a) of section 731 now provides, in relevant part:

If a minor is adjudged a ward of the court on the ground that he or she is a person described by Section 602, the court may order any of the types of treatment referred to in Sections 727 and 730 and, in addition, may do any of the following: []

(4) Commit the ward to [YA], if the ward has committed an offense described in subdivision (b) of Section 707 and is not otherwise ineligible for commitment to the division under Section 733.

Section 733 now provides, in relevant part:

A ward of the juvenile court who meets any condition described below shall not be committed to the [YA]: []

(c) The ward has been or is adjudged a ward of the court pursuant to Section 602, and the most recent offense alleged in any petition and admitted or found to be true by the court 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. This subdivision shall be effective on and after September 1, 2007.

The Legislature also added section 731.1 to create a two-step process for addressing YA commitments such as the one appellant is challenging, i.e., commitments occurring before September 1, 2007, as a result of an offense that is not listed in subdivision (b) of section 707 and is not a sex offense set forth in prior Penal Code section 290, subdivision (d).^[4]

Section 731.1 now provides, in relevant part:

Notwithstanding any other law, the court committing a ward to [YA], upon the recommendation of the chief probation officer of the county, may recall that commitment in the case of any ward whose commitment offense was not an offense listed in subdivision (b) of Section 707, unless the offense was a sex offense set forth in paragraph (3) of subdivision (d) of Section 290 of the Penal Code, and who remains confined in an institution operated by the division on or after September 1, 2007.

When ascertaining whether a statute should be applied retroactively, legislative intent is the paramount consideration. (People v. Nasalga (1996) 12 Cal.4th 784, 792 (Nasalga).) If the legislative intent is not clear, a law lessening the punishment for a given crime generally is applied to cases that are not yet final. (In re Estrada (1965) 63 Cal.2d 740, 748.) This rule of lenity of course, is not implicated where the Legislature clearly signals its intent to make the amendment prospective, by the inclusion of either an express saving clause or its equivalent. (Nasalga, supra, 12 Cal.4th at p. 793.)

In this instance the legislative intent is clear. The last sentence of subdivision (c) of section 733 says that the section is to be applied on and after September 1, 2007. [Emphasis added.] This specification can only mean that the provision is not applicable to cases occurring before that date. By using the phrase on and after the Legislature clearly indicated that it intends for the amendment to be applied prospectively. Although section 731 does not contain a specific operative date in the statute itself, the relevant provision of section 731 refers to section 733. Each statute cannot be considered in artificial isolation but must be construed in harmony to give force and effect to each section, to the extent possible. (Woods v. Young (1991) 53 Cal.3d 315, 323.)

The Legislatures enactment of section 731.1 further reinforces our conclusion that it intended prospective application of the changes to sections 731 and 733. Section 731.1 confers joint discretion upon the probation department and the court to recall a ward from YA and describes a procedure for doing so in appropriate cases. Thus, the Legislature created a discretionary process for release of appropriate minors who are currently committed to YA for offenses that would not now qualify for a YA placement. The availability of this process generally ameliorates any perceived injustice resulting from the enactment of restrictive rules governing eligibility for a YA commitment that do not apply retroactively. That appellant personally might not be eligible to benefit from section 731.1 does not alter our view that, in general, the Legislatures enactment of section 731.1 reduces any perceived unfairness resulting from prospective application of sections 731 and 733.

In sum, reading the plain language of sections 731, 731.1 and 733 together, we conclude that the Legislature intended that the changes apply prospectively to cases occurring on and after September 1, 2007. Therefore, appellant is not entitled to a new dispositional hearing. (Brandon, supra, 160 Cal.App.4th at p. 1080; Carl, supra, 160 Cal.App.4th at p. 435.)

DISPOSITION

The judgment is affirmed.

_________________________

Levy, J.

WE CONCUR:

_______________________________

Wiseman, Acting P.J.

_______________________________

Gomes, J.

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^[1] Unless otherwise specified all statutory references are to the Welfare and Institutions Code.

^[2] Prior to enactment of the 2007 changes to sections 731 and 733, juvenile courts had broad discretion to commit a minor to the YA. The only outright prohibitions against such a commitment were if the minor was under 11 years of age or if the minor was suffering from a life-threatening infectious or contagious disease.

^[3] Penal Code section 290, subdivision (d)(3), has been reenacted as Penal Code section 290.008, subdivision (c).

^[4] [S]ection 731.1 was enacted as part of the same legislation that became operative on September 1, 2007, and amended section 731, repealed former section 733, and added the current version of section 733. (Carl, supra, 160 Cal.App.4th at p. 437.) Section 731.1 was amended shortly after its enactment and the current version of section 731.1 became effective on September 29, 2007. (Stats.2007, ch. 257 (Assem. Bill No. 191),  3, eff. Sept. 29, 2007.)