THE PEOPLE v. C. H., Defendant and Appellant. (2010)

Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. C. H., Defendant and Appellant.

No. B214707

Decided: May 18, 2010

Christopher H. appeals from a juvenile court dispositional order committing him to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ),1 for a maximum term of confinement of eight years.   Appellant contends that the court abused its discretion because “1. There was insufficient evidence to support the court's finding of probable benefit from the commitment to DJJ;  and [¶] 2. Alternative placements were not sufficiently considered and it was improper to reject the ones offered [by appellant].”   Appellant also contends that the commitment offense-lewd act upon a child under the age of 14 years (Pen.Code, § 288, subd. (a))-does not qualify as an offense for which he can be committed to the DJJ. We affirm.2  Factual and Procedural Background Appellant was born in August 1992 and was adopted three days later.   In October 2005, when appellant was 13 years old, he licked the vagina of his three-year-old sister and put his penis inside her mouth.   This incident constitutes the commitment offense.   Appellant admitted to the police that a similar incident had “happened another time with the victim at their house about a year prior and that his father caught him.”   Appellant also admitted that, about a year earlier, he had “put[ ] his mouth” on his then seven-year-old sister's vagina and had sexually molested his then seven-year-old brother.   Appellant's parents said that they “first became aware of [appellant] sexually acting out when he was seven years old.”   Appellant's mother caught him and another boy with their pants down.   The other boy “said that [appellant] told him ‘If you suck my penis, I'll suck yours.’   “ Appellant's mother “heard from neighbors and a family friend that [appellant] asked a neighbor boy (age 8) and a girl (age 11) to have sex about two years ago” when appellant was 11 years old.   In October 2005 when appellant sexually molested his three-year-old sister, he was in counseling for his prior sexual misconduct.   His therapist said that appellant “is unable to control his impulses to sexually acting out” and that he had not improved after almost one year of treatment.   In November 2005 a petition was filed pursuant to section 602 of the Welfare and Institutions Code.3 The petition alleged that, in violation of Penal Code section 288, subdivision (a), appellant had committed a lewd act upon his three-year-old sister in October 2005.   In December 2005 appellant admitted the petition's allegations, and the juvenile court found that he came within the provisions of section 602.   The court released appellant to the custody of his aunt after he had signed a contract forbidding him from contacting anyone not approved by his aunt.   Three days later, appellant violated the contract “by conversing with an ‘older’ female on a ‘sexual website.’  “ Appellant was detained and transported to a juvenile facility.   On January 5, 2006, appellant was declared a ward of the juvenile court and placed on probation.   He was removed from the custody of his parents and “committed to the care of the probation officer for placement in a suitable open placement.”   On January 12, 2006, appellant was placed at Starshine Treatment Center.   In a supplemental report filed in July 2006, appellant's probation officer characterized his “performance in the overall program at Starshine ․ as lethargic.”   The probation officer noted that appellant had “just recently had an incident with another minor involving inappropriate sexual conduct.”   In a supplemental report filed in January 2007, the probation officer wrote that appellant had “made little improvement” at Starshine.   Appellant's therapist said that “he continues to be at a high risk to re-offend.”   In February 2007 the probation officer filed a notice of charged violations of probation.   The violations included a failure to complete therapy assignments and to participate in group therapy.   The probation officer declared:  “When asked why he doesn't do what he needs to do, [appellant] has nothing to say aside from, ‘I don't know.’  [Appellant's] therapist ․ has tried several different therapeutic approaches ․ to try to gain his participation, and still [appellant] does not respond.”   Appellant admitted that he had violated his probation by failing to complete therapy assignments and participate in group therapy.   Pursuant to the juvenile court's recommendation, appellant was removed from Starshine and placed at Rancho San Antonio.   On May 30, 2007, the probation officer filed a second notice of charged violations of probation.   Appellant was charged with engaging in two consensual sex acts with another resident at Rancho San Antonio.   The sex acts involved oral copulation and anal penetration.   Because of these incidents, Rancho San Antonio terminated appellant's participation in its treatment program.   Appellant told the probation officer that, when he becomes an adult, he would like to have an operation to change his sex from male to female.   The probation officer declared:  “This 14 year old minor failed his first treatment program after 13 months of substandard progress before entering Rancho San Antonio in February '07.   Unfortunately, [appellant] demonstrated the same lackluster effort while at Rancho San Antonio.   More concerning to Rancho San Antonio treatment team was [appellant's] gender identity issue․”  Appellant admitted the charged violations of probation.   On June 20, 2007, appellant was placed at Gay and Lesbian Adolescent Social Services (GLASS) in Los Angeles.   In a supplemental report filed on July 5, 2007, appellant's probation officer noted that at GLASS appellant was “receiving sex offender therapy, as well as therapy that addresses his gender identity issues.”   On May 1, 2008, the probation officer filed a third notice of charged violations of probation.   Appellant was charged with failing to complete assignments for his sex offender therapy at GLASS.   The manager of GLASS reported that appellant had completed only one of twelve assignments.   His therapist at GLASS stated:  “ ‘[Appellant] has shown myself and other staff that he is an intelligent and caring young man who can be manipulative and very lazy.   He has shared how he has learned over time that if he plays “dumb” or incompetent, less is expected of him and in his mind means more TV and game time.   He has also stated that he enjoys “getting one over” on adults by not doing his work, or pretending that he doesn't understand it.   This learned helplessness has been going on for many years before he arrived at GLASS according to [appellant].’  “ On May 2, 2008, appellant admitted the charged violations of probation.   The juvenile court ordered that he serve 90 days in the “Juvenile Justice Facilities.”   But it stayed execution of the 90-day commitment until July 18, 2008.   The court said that on that date it would vacate the commitment if appellant had made a genuine effort to participate in the treatment program at GLASS.   On July 18, 2008, the probation officer filed a memorandum concerning appellant's behavior at GLASS.   The probation officer reported:  “On 7/10/08, Probation met with GLASS staff to review [appellant's] progress.   Staff reported no improvements with his attitude and behavior.  [Appellant] still failed to complete his assignments for his JSO [Juvenile Sex Offender] group.”   When a therapist asked him why he did not complete his assignments, appellant replied:  “ ‘I won't lie, I just didn't feel like doing it.’  “ A GLASS progress report noted that appellant “ ‘prefers to watch TV, play Playstation games, or just lie around and do nothing.’  “ The progress report further observed:  “ ‘For four weeks straight [appellant] was not prepared with his issues for the advanced JSO group.   He was voted by his peers and staff to start back over in the entry level JSO group.’  “ The progress report opined that “ ‘[a]t this time [appellant] is at a high risk of re-offending.’  “ On July 18, 2008, the juvenile court ordered appellant to serve the previously stayed 90-day commitment at the Juvenile Justice Facilities.   In a memorandum filed on August 29, 2008, the probation officer reported that appellant's performance at the Juvenile Justice Facilities “has been satisfactory.”   On that same date, the juvenile court granted appellant an early release and ordered that he be returned to GLASS.   On January 2, 2009, the probation officer filed a supplemental report on appellant's progress at GLASS.   The probation officer concluded that appellant had failed “to make any progress in his JSO program.”   A GLASS progress report observed:  “ ‘Since [appellant] returned from juvenile hall his attitude has been more negative.   He is defiant with staff.   He often refuses to do what is asked of him or if he does it, he makes very little effort to do it correctly.   He has lied to staff and cursed at them.   He is doing very little Juvenile Sex Offender (JSO) work and school work.   His school grades are very poor․  Even if told to sit a[t] the kitchen table to do his work, if left alone, he will put his head down and sleep.’  “ The progress report noted that, on a PlayStation Portable device, appellant had accessed “several pornographic sites including one of beastiality [sic].”   On January 5, 2009, the probation officer filed a fourth notice of charged violations of probation.   The notice alleged that appellant “fails to follow the [GLASS] program rules, is not completing assignments for his sex offender therapy, and is making no progress.”   The probation officer declared that, during an interview on December 31, 2008, appellant had “admitted that the reason he did not complete his assignments was due to laziness not because he did not understand the assignments/material.”   Appellant “stated that if he had chosen to complete the assignments, he would not have had any difficulty in doing so.”   On January 6, 2009, appellant admitted the probation violations.   The juvenile court asked the probation officer “to contact the [DJJ] to see if a commitment there would ensure [appellant] participate in their sexual offender therapy program.”   On February 18, 2009, the probation officer filed a supplemental report.   The probation officer said that appellant had been “screened for a commitment” to the DJJ. If so committed, appellant “will participate in the sex behavior treatment program[ ].”  The probation officer concluded:  “[Appellant's] continued defiance and resistance to treatment justify his need for a structured program that is able to provide aggressive treatment.   Due to his high risk to re-offend, it is recommended that [appellant] be provided a higher level of supervision, with no immediate access to the community.   A commitment to the [DJJ] would enable [appellant] to receive the appropriate level of treatment and supervision.”   On February 11 and 18, 2009, the juvenile court conducted a disposition hearing on appellant's probation violations.   Appellant's counsel asked the court “for one last placement” before sending him to the DJJ. Counsel recommended that appellant be placed at the Stetson School in Massachusetts.   A psychologist, Dr. Dani Levine, appeared in court and opined that the DJJ cannot effectively treat appellant and is “not a safe environment” for him.   In a letter filed with the court, Dr. Levine also recommended the Stetson School for appellant because it “offers a unique program specifically designed to treat children with sexual behavioral problems.”   Dr. Levine wrote that the Stetson School “has earned a reputation of expertise in the juvenile sex offender field.”