Opinion
No. A149924
11-17-2017
In re N.D., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. N.D., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super Ct. No. J1600186)
N.D. appeals from the juvenile court's decision to commit him to the Department of Juvenile Justice (DJJ) after being presented with evidence that he committed several forcible sex offenses against Jane Doe and engaged in violent and/or aggressive behavior before and after these offenses, including at juvenile hall pending the resolution of his case, as well as evidence that the DJJ was a secure facility that would provide an extensive therapeutic program and disciplined environment for him. N.D. contends the juvenile court abused its discretion in committing him to the DJJ because there is not sufficient evidence that less restrictive placement alternatives were inappropriate or that he would probably benefit from a DJJ commitment. We disagree and affirm the court's commitment decision.
BACKGROUND
In February 2016, the Contra Costa County District Attorney filed a juvenile wardship petition under Welfare and Institutions Code section 602 alleging that on February 14, 2016, N.D., then 15 years old, committed against Jane Doe two counts of forcible rape (Pen. Code, § 261, subd. (a)(2)); two counts of forcible sexual penetration (id., § 289, subd. (a)(1)(A)); and sodomy by use of force (id., § 286, subd. (c)(2)). It was further alleged that he attempted to dissuade Jane Doe from being a witness by force or threat (id., § 136.1, subd. (c)(1)). N.D. was detained and ordered placed in juvenile hall.
Statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I.
The Contested Jurisdiction Hearing
In July 2016, the court conducted a contested jurisdiction hearing, for which the probation department prepared a memorandum to the court. The department detailed multiple incidents of misconduct by N.D. in juvenile hall. In March 2016, he was involved in a "physical altercation with another resident" inside a classroom, failed to comply when staff "ordered him to the ground" and was subdued via the use of "OC" spray. That same month, he threatened a juvenile institution officer who denied him use of a television remote control. In April 2016, N.D. repeatedly yelled threats that he would hurt an officer who had disciplined him.
The term "OC" is not further defined in the record. It was used in a reference to pepper spray in In re D.W. (2015) 236 Cal.App.4th 313, 319.
At the jurisdiction hearing, several witnesses testified. We summarize only the evidence relevant to our resolution of this appeal.
A. Jane Doe's Testimony
Jane Doe testified that around 9:00 a.m. on February 14, 2016, she left her Concord, California apartment to take her three dogs to a nearby park. She was addicted to methamphetamine and used it every day. At the park, N.D. approached and offered her "some shit." She said she wanted methamphetamine. He said, "Okay." She said she had no money, and testified that she thought N.D. would just give her methamphetamine. N.D. asked if she lived nearby and when she said she did, he said, " 'Let's go back to your place' " two or three times. Jane Doe eventually took him there. They did not discuss her providing sex for the drugs.
Jane Doe said she let N.D. into her apartment and told him to show her the drugs. He walked towards her, grabbing his penis. She said, "I'm talking about the dope.' " He pulled some things out of his pockets, including a cigarette pack, a pill box and a "nug" of marijuana. He said something like, " 'I guess I don't have it.' " She was alarmed, told him to leave many times and opened her apartment door. N.D. slammed the door shut, grabbed Jane Doe's arms and started touching her stomach.
Jane Doe said she broke away from N.D. and ran to her room, where she grabbed a "flick knife" to protect herself. She walked out of her bedroom and held the knife out with the blade closed. N.D. grabbed her arm, wrestled the knife from her, and tossed it away. He then fought her to the ground and told her, " '[I]t's going to get worse for you if you don't give in, if you don't stop.' " He was overpowering. He pulled off her pants and underwear as she cried, terrified, and told him to stop. He put his finger and then his penis in her vagina without her consent, hurting and scaring her. He put his penis in and out of her vagina for some minutes.
Jane Doe said she fought against N.D. to try to get up. He put his arm around her neck from behind, using a choke hold, and she screamed. She could barely breathe. She screamed for help and that he was raping her. He covered her mouth and questioned her in a "[v]ery threatening" tone about whether she was going to tell the police. He forced her back onto the floor and put his penis back in her vagina. He lifted up her shirt, pulled down her bra, licked and sucked her neck and licked her breasts and body. His strength kept her down. He also "forcefully kissed" her, sticking his tongue in her mouth as she tried to scream, and told her repeatedly to kiss him. This went on for a couple of minutes.
Jane Doe further testified that N.D. then forced her to flip onto her hands and knees. She was terrified. He forcibly put his penis in her anus, hurting her. She was able to get up and away from him, ran to the apartment door and opened it. N.D. slammed it shut. She kicked him, exchanged punches with him (neither of them actually punching the other), and kicked him again. He grabbed her foot and twisted it, and she fell to the ground. He flipped her onto her hands and knees again. She was again able to get up and run to the door, and this time she made it outside. She ran down the hall wearing only her bra around her waist and screaming for help. She saw N.D. with his shirt off exit her apartment and run down a stairwell.
Jane Doe was interviewed by police and examined by a nurse who specialized in sexual assaults. Jane Doe testified that she deceived them when she said N.D. followed her back to her apartment and forced his way in, did not disclose their drug talk, denied any drug use, did not disclose that she allowed N.D. into her apartment to obtain drugs from him, and did not say that she grabbed a knife during the incident. She was afraid the police would arrest her for a drug offense and not respect or believe her because of her drug use.
Jane Doe also testified that she had been convicted of misdemeanor petty theft and felony burglary in 2009. She had suffered from drug-induced hallucinations while using methamphetamine and heroin, which caused her to be "extremely paranoid" that "everyone" was "out to get" her, and also to hear voices. She did not use methamphetamine on the morning of the incident.
B. The Neighbors' Testimony
Jane Doe's female next-door neighbor testified that she was awakened by her husband about 9 a.m. on the day of the incident because he heard noises coming from Jane Doe's apartment. About 10 minutes later she heard what sounded like kitchen cabinets banging from Jane Doe's apartment. About five minutes later, Jane Doe's apartment door quickly opened and closed twice. The neighbor then heard a female scream "rape." She opened her apartment door and saw Jane Doe running down the hall in a bra only. As the neighbor called 911, she saw an African American male walk out of Jane Doe's apartment, say something like, " Naw. That bitch is lying,' " and go down a stairwell.
The husband also testified that around 9 a.m. on the morning of the incident, he heard noises from Jane Doe's apartment, and saw his neighbor run out of her apartment and down the hallway. He had not heard any yelling from her apartment before this time. He saw N.D. walk out of Jane Doe's apartment and say, " 'That's BS.' " Before the incident, he had noticed a stream of noises from the apartment and people, mostly men, frequenting there, particularly in the evening and night. He had seen at least four or five men, and it had "really picked up" in the past couple of months.
C. The Nurse's Testimony
A nurse who conducted a sexual assault examination of Jane Doe on the afternoon of February 14, 2016, testified that she observed bruises on the left side of Jane Doe's neck, her right shoulder, her back shoulder area and on both the outside and the inside of her right foot, and a scratch down past a shoulder blade. She did not find any injuries to Jane Doe's genital area, cervix, buttocks, anus or rectum from sexual assault, which was not unusual for people she examined who claimed to have been sexually assaulted. The results of her exam were consistent with the sexual assault Jane Doe described. She swabbed parts of Jane Doe's body for forensic testing.
D. The DNA Evidence
A Contra Costa County crime lab criminalist testified that she found indications of saliva on swabs taken from Jane Doe's right nipple and right breast. Another lab criminalist testified that she conducted DNA tests of samples from these swabs and found they matched Jane Doe's profile. She also found traces of degraded DNA that were "highly likely" to have come from N.D., as they occurred once in 4.3 quadrillion African Americans, once in a quadrillion Caucasians and once in 550 trillion Hispanics.
This second criminalist also concluded that a swab from N.D.'s penis contained DNA that matched N.D. and another contributor who was "highly likely" to be Jane Doe. She calculated that the contributor's DNA occurred once in a quadrillion African Americans, once in 19 trillion Caucasians and once in 400 trillion Hispanics. She also concluded from other samples that Jane Doe "likely" contributed some of the DNA contained in N.D.'s left and right hand fingernail scrapings, a conclusion supported by similar calculations.
E. Evidence of N.D.'s Previous Sexual Offense
The prosecution also presented evidence of the juvenile court's finding in a previous case that N.D. had committed misdemeanor sexual battery against I.A, who testified at the jurisdiction hearing. I.A. testified that on December 8, 2014, when she was 13 years old, she was suspended from school and started walking home. N.D., who attended the same school, called her name; she ignored him but he caught up to her. She said she did not want to talk, he said he was going to follow her anyway. As she continued walking, he grabbed her chest, pushed her into a fence and got on top of her. He said, " 'I'm not going to let you go. You're going to tell me what's going on.' " She told him, " 'If you keep touching me, I'm going to call the cops.' " N.D. yelled, " 'I'm not going to leave you alone. Nobody can hear you. You can yell all you want.' " She tried to push him away, but could not, and he touched her breast repeatedly. A man across the street yelled at him to stop and N.D. yelled back at him. Finally, a woman walking by with a dog told N.D. to stop, grabbed I.A. and took her away.
F. N.D.'s Interrogation
On February 14, 2016, a police officer interrogated N.D. The interrogation was video-recorded and played at the jurisdiction hearing. In the interrogation, N.D. stated that he had been selling marijuana since he was 13 and had been sexually active with several girls. He met Jane Doe in the park that morning. She asked him if he had any "crystal." He told her he could get her some, and she invited him to her "house."
N.D. said that at her apartment, Jane Doe went to her room to put her dogs in their cage, and also changed her clothes there. He was not expecting to have sex with her or to make any money from helping her find some methamphetamine. He was just trying to help her, as he had helped other methamphetamine addicts before.
Early in the interrogation, N.D. said he dressed that morning in the same clothes he was wearing at the interrogation, including a black top. Told the police knew he dressed in a gray tank top that morning, he said he had, but he exchanged it with someone he met on the street for the black top because it was cold outside. Told that his tank top was found on the floor of Jane Doe's apartment, he said that while Jane Doe was in her room, he took it off because he did not like how it felt and wore just a red sweater.
N.D. said that at the apartment Jane Doe asked him for methamphetamine. When he said he did not have any, she accused him of lying and came at him with a knife, which he wrestled out of her hands her and threw aside. He restrained her in order to protect himself, then let her up. Asked about a burn on his knee, he said he got it at his house, not at her apartment. When he released Jane Doe, she ran out of her apartment yelling things.
Regarding his previous misdemeanor sexual battery, he said he had gotten into an argument with a girl who swung at him, so he pushed her away.
G. N.D.'s Testimony
N.D. also testified at the jurisdiction hearing. He repeated much of what he had said during the interrogation about the first part of his encounter with Jane Doe. However, he testified that when they got to her apartment, she asked what he wanted for the methamphetamine and he said she could have sex with him. They had consensual sex and she then asked for the methamphetamine. N.D. told her he did not have any and offered her marijuana instead. She became agitated and grabbed a knife as N.D. started walking to the door. Afraid that she would stab him, N.D. grabbed her arms, slammed her to the ground, put his arm around her neck, pried the knife away and slid it under the refrigerator. She grabbed his shirt, so he slid out of it and left the apartment. Jane Doe ran outside yelling, " 'Help. Call the police. Rape.' " He lied to the police during his interrogation about not having sex with her because he did not want to get in trouble.
H. The Court's Ruling
At the conclusion of the hearing, the court found that Jane Doe was telling the truth. It said, "I found [N.D.] . . . to be completely not credible. I found his inconsistencies, his lies, his embellishments—I found him to be completely not credible, when he testified on the stand, when he talked to the officers." On the other hand, "[w]hen [Jane Doe] testified on the stand, I was just dumbfounded. I found her so incredible; very, very credible. I think . . . she was a drug addict. She is looking for the drugs. He said he had them. She brought him back, whatever the exchange was for. When she found out he didn't have them, she wanted him out of there. He scared her. I think he raped her, almost exactly like she described.
"Her testimony was absolutely riveting and compelling. And, frankly, I was shocked that I found it so. I don't think I was preconceived at all to find [Jane Doe] credible. And, yet, after listening to her testimony, hearing the shock, the fear, the terror that she had in describing what was done to her, and what her fear was of what was going to happen to her, was palpable. It was absolutely credible. [¶] The fact that she lied to the officers about the—didn't want to talk about the drugs, is understandable, but it did not touch her credibility on the stand. I understood why she lied. I don't find it good that she lied to the officers, but I understood why she lied.
"The neighbors, you know, the—there is so much evidence here and so much different evidence. The neighbors, . . . you can't forget that . . . the wife—was woken up by the husband because of the noises he heard. They had to be pretty significant that . . . he woke her up, and she comes in and then she hears the noises.
"I believe he told one of the officers there was yelling . . . he heard the yelling, and she heard the banging, and she felt it was like . . . banging cupboards. She heard the noise. And then, of course, [Jane Doe] runs out, nude, except for a bra, screaming, terrified, down the hall. [¶] And [N.D.] is as cool as you can be. He comes to the door, and goes, it's BS—and . . . she is lying, or something.
"I think the evidence is just irrefutable, that there was a nasty, nasty, terrifying rape here.
"She didn't—you terrified her, absolutely terrified this woman. Whatever motive started this, whatever—however it became, I think you are guilty, and I think you are guilty beyond a reasonable doubt."
The court found that N.D. committed two counts of forcible rape (Pen. Code § 261, subd (a)(2)), and one count each of forcible sexual penetration (id., § 289, subd. (a)(1)(A)) and sodomy by force (id., § 286, subd. (c)(2)). It did not find true the allegations that he committed a second count of forcible penetration or that he dissuaded a witness by force of threat.
II.
The Probation Department August 2016 Memorandum
In August 2016, the probation department submitted a memorandum with disposition recommendations to the court in preparation for a contested disposition hearing. It reported that N.D. had engaged in further misconduct at juvenile hall. In May 2016, he yelled and cursed at staff when instructed to remove a shoe stuck in the door to his room. In July 2016, he was in a fight with another juvenile in a classroom and OC spray was used again to subdue him.
The department reported that it had screened N.D. for out-of-home placement and, although he was technically eligible for it, concluded such a placement would be inappropriate. The department wrote, "Due to the serious nature of the offense, [N.D.] needs a more secure setting than Out-Of-Home Placement can provide to have his rehabilitative needs met and ensure the safety of the community. [N.D.] does not take responsibility for his actions and has refused to cooperate with Placement efforts in the past. [N.D.] was released from custody after exhausting his custody time for a Sexual Battery and committed a more serious sexual offense within seven days." The department also reported that N.D. received a score of 10 on the Juvenile Sexual Offense Recidivism Risk Assessment Tool-II. This score indicated that there a "moderate-high range of risk" that N.D. would commit "one or more future sexual offenses as a juvenile."
The department recommended that N.D. be committed to the DJJ because of "the seriousness of the offense, [N.D.'s] lack of accountability and remorse, [N.D.'s] previous failed attempt of Out-Of-Home-Placement, his disruptive behavior in Juvenile Hall, and his high risk to re-offend."
III.
The Contested Disposition Hearing
At the contested disposition hearing, Jane Doe stated that "due to the horrifying memories from that day," she would "be haunted with fear" and "traumatized and shattered" for the rest of her life. She asked that N.D. receive the maximum time allowable and be required to register as a sex offender for the rest of his life "in order to prevent the possibility of this ever happening again."
Several people, including N.D.'s mother, pastor, godmother and sister, submitted letters and/or spoke at the hearing on N.D.'s behalf. They spoke of his good heart, helpfulness and concern for others, his church activities, and the trauma he endured when at age 10 he suffered the loss of his baby sister, an uncle and his maternal grandmother, who all died within a short period of time.
A senior psychologist supervisor at the DJJ in Stockton testified that juveniles committed to the DJJ were evaluated at intake to determine what services should be provided to them. For sex offenders, special services included three hours of group therapy a week with a psychologist and a specially trained youth counselor, 30 minutes of individual therapy a week with a psychologist, 30 minutes with a youth counselor and a casework specialist, and other group activities "like mood matters, and book groups, and movie videos." The program is "very, very highly structured" and the juveniles "get very little free time during the day."
The supervisor said the program looked "at what the individual youth's abilities are" and "individualize[d] what their treatment looks like, depending on their strengths, while coming in and supporting areas in which they have some deficiencies." Therapy and treatment did not just happen "three hours a week." Rather, treatment was "24 hours a day, in everything" the youths did. Staff was trained in an "integrated behavioral treatment model," and six psychologists were dedicated to treating sex offenders. Youth sex offenders were housed in their own living unit, but attended school with everyone else in the facility. The DJJ had "minimal issues" around juveniles being labeled or targeted because of their sex offense history.
The curriculum for sex offender treatment was developed with the help of a specialized educator. It consisted of seven stages. The autobiography stage helped providers understand the youths' perceptions of their upbringing, their cultural identity, and those things that are important to them. In the "responsibility and accountability" stage, youths started "looking at where they have been in their life, not just the sex offense." The third stage was the hardest, and was when youths were "really looking at what happened to them." They spent a lot of time "looking at their own history of abuse, of things that have happened, cultural violence, whatever those things are." In the fourth stage, they "look[ed] at what they did" and worked through "their own guilt and shame and taking responsibility for what they did." After that, youths discussed and took part in restorative justice, set career, vocational and educational goals, and made future plans. Throughout, they were placed in groups with people who were further along and provided examples to be followed.
N.D.'s counsel stated that she had spoken to representatives of three different group homes with which she thought the court was familiar, Gateway, Children's Home of Stockton and Oakendell. The court indicated it was "very familiar" with them. Counsel stated, "all three of them sound great. Oakendell sounds—it's a great program—it sounds like over half their staff has been there more than 10 years." The court stated, "It's a very good program," but said it was "open," meaning "you can walk away anytime." Counsel agreed the three programs were not locked facilities, but said Oakendell was "very isolated," and that she had been told youths who had tried to run in the past were apprehended very quickly "because they're kind of out in the middle of nowhere."
Also, counsel told the court, while the three programs could not say whether they would accept N.D., probation did not screen him for placement at any of them. She had given the programs a brief summary of N.D.'s case and this did not raise "any red flags." All three told her "they were familiar with and they've worked with kids who have very serious and violent sexual adjudications." The court asked if there were any openings in these programs and counsel indicated there were none at Oakendell, but she had been told there might be soon.
N.D.'s counsel further argued that like the DJJ, "These programs also have individual counseling, group counseling, other sorts of groups. In addition to that, they have Independent Living Skills programs." They "had a lot of success with their youth." Further, she argued, N.D. "never had any sort of treatment" and had not been screened for these programs. She asked the court to give him the opportunity to be in one of them rather than commit him to the DJJ.
N.D.'s counsel also submitted three publications to the court that analyzed the effects of juvenile sex offender registration. The first was a 2015 article by Harris et al., published in Sexual Abuse: A Journal of Research and Treatment, entitled, Collateral Consequences of Juvenile Sex Offender Registration and Notification: Results From a Survey of Treatment Providers. The authors concluded that "treatment providers overwhelmingly perceived negative consequences associated with registration and notification policies," including "problems related to mental health, harassment, school, and home stability."
The second publication was a 2008 article by Letourneau and Armstrong published in the same journal, entitled, Recidivism Rates for Registered and Nonregistered Juvenile Sexual Offenders. The authors concluded that registration generally was not effective in reducing recidivism and found indications that youths who were required to register as sex offenders had a higher risk of recidivism for non-person offenses, such as theft and drug offenses. They asserted that "[o]ne interpretation of this pattern of findings is that less serious offenses triggered new convictions for registered but not nonregistered youth."
The third publication was a May 2010 article by Letourneau et al., published in Criminal Justice and Behavior, entitled, Do Sex Offender Registration and Notification Requirements Deter Juvenile Sex Crimes? These authors concluded that juvenile sex offender registration did not have a deterrent effect, reduce recidivism or improve community safety. They further opined that "[i]n the absence of any evidence of a positive effect on community safety, the public shaming of juveniles via online and other forms of public notification serves primarily as additional retribution" that "is antithetical to the philosophy of the juvenile justice system, which strives to balance community safety with the rehabilitative needs and rehabilitative potential of juveniles."
The People asked the court to follow the probation department's recommendation and commit N.D. to the DJJ based on the evidence that N.D. had committed a previous misdemeanor sexual battery offense and that he had refused to receive any type of therapy. N.D. interjected, "No, I didn't."
At the conclusion of the hearing, the juvenile court extensively discussed its views of the case. It did not find the studies submitted by N.D.'s counsel to be dispositive. It explained, "In my prior job, I was head of the Bureau of Justice Statistics and the National Institute of Justice, so I know you can find a study to say about anything. And I don't have any other studies. I didn't do any extra looking, but I have some quarrel with some of the comments on the studies. [¶] I think they put generic sexual offenses in an area that has—were not in that area—in a very specific sexual offense: forcible rape and forcible sodomy. These are very serious offenses."
The court then discussed the evidence regarding N.D. It noted that "[h]e was found to be moderate and high risk for the behavior" which the court found "unusual" because probation "usually" found "somebody relatively low-risk." It cited N.D.'s "very poor" behavior at juvenile hall. Also, the court stated, "He chose a very vulnerable victim, an addict. He knew who he was choosing. He specifically chose her. And I have to say: When I first read about the case and I heard the testimony—or heard she was going to testify, I really was—let's say I was not overly impressed with prosecution and I thought it would be a different case: the victim was genuinely terrified. Her testimony was so compelling, and I did not expect it to be. [¶] But you went after this vulnerable victim, and it was so terrifying, listening to her terror. She was in abject terror throughout the whole ordeal. She thought she was going to die. She truly thought she was going to die. And that came across so clear."
At this point, N.D. said something and the court asked, "Are you mumbling now?" N.D. replied, " 'Ma'am, you know nothing in the streets. You know nothing where—what goes on in the streets.' " The court responded, "You know, your attitude, right now, is just what I saw in the trial. You know, you were smiling when she was testifying and sobbing" and "then you came to these horrible stare-downs, with hate-filled eyes just staring at the victim, and then you would turn to me and just stare—stare." N.D. responded that Jane Doe "was lying." The court replied, "I didn't say a word about you—your behavior during the trial convinced this court that you are one of the most dangerous young men I have had before me. I think you are very, very dangerous. [¶] And, frankly, the whole time I'm watching you—I had chills watching you during the trial. That's how dangerous I think you are. [¶] Her testimony was, as I said, very compelling, and your behavior—you were frightening, just absolutely frightening."
The court then turned to the three programs that N.D.'s counsel recommended. It said it was "very familiar" with them. It thought that Oakendell and Children's Home of Stockton were "wonderful" programs, but did not think "they come near to the needs that [N.D.] has." The court continued, "I've sent people to Oakendell for sexual offenses—I've never sent anyone to Oakendell with the kind of malevolent, vicious behavior that this man did to this victim. I do not find Oakendell appropriate for him. And it is an open program. [¶] I do not find Children's Home of Stockton appropriate. It is an open program. They have no bars—anybody can walk out—in fact, Children's Home of Stockton, they can walk right out in the street." As for Gateway, "It's on a residential street. . . . [W]hen I went there the last time, they had . . . a home with a lot of little children's things in it." The court asked at Gateway about the lack of big fences and was told, " 'Well, we just watch real carefully to make sure they don't hop over into the other yards.' " The court thought N.D. was "too dangerous" for this approach.
The court was also impressed with the DJJ's new programs, which it thought were what N.D. needed. After another interruption from N.D., the court continued, "[H]e needs ongoing, deep therapeutic help. He needs behavior change. [¶] I don't know how they're going to do it. I don't know how they're going to change the deep-seated hatred that this man has in his persona and the way he appears. But the whole time this victim was testifying, all the court could think is, 'Oh, my God. The next victim won't live to testify.' "
The court then found beyond a reasonable doubt that the DJJ was "the appropriate program to give the changes that this young man needs. [¶] I have considered all less restrictive programs. I know them. I've been to them. They are not for this young man. [¶] I also believe all the rehabilitation and treatment and the education provided by the [DJJ] would benefit this man tremendously. [¶] I do think they have some fabulous programs there." It committed N.D. to the maximum term of 14 years, adjusted to ten years under Welfare and Institutions Code section 731, and awarded him 219 days of custody credits.
N.D. filed a timely notice of appeal.
DISCUSSION
I.
The Juvenile Court Acted Within Its Discretion to Commit N.D. to the DJJ.
N.D. argues that the juvenile court abused its discretion because "there was insufficient evidence that less restrictive alternatives were unavailable or inappropriate and because there was insufficient evidence that he would likely benefit from the commitment" to the DJJ. We disagree.
A. Legal Standards
Juvenile courts seek to rehabilitate delinquent minors consistent with public safety. "Minors . . . shall, in conformity with the interests of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. . . . When the minor is no longer a ward of the juvenile court, the guidance he or she received should enable him or her to be a law-abiding and productive member of his or her family and the community." (§ 202, subd. (b).) "Juvenile courts . . . shall consider the safety and protection of the public, the importance of redressing injuries to victims, and the best interests of the minor in all deliberations pursuant to this chapter." (Id., subd. (d).)
Thus, "the [juvenile] court has broad discretion to choose probation and/or various forms of custodial confinement in order to hold juveniles accountable for their behavior, and to protect the public. . . . Nor does the court necessarily abuse its discretion by ordering the most restrictive placement before other options have been tried." (In re Eddie M. (2003) 31 Cal.4th 480, 507.) Specifically, "[a]lthough the DJJ is normally a placement of last resort, there is no absolute rule that a DJJ commitment cannot be ordered unless less restrictive placements have been attempted. [Citations.] A DJJ commitment is not an abuse of discretion where the evidence demonstrates a probable benefit to the minor from the commitment and less restrictive alternatives would be ineffective or inappropriate." (In re M.S. (2009) 174 Cal.App.4th 1241, 1250.)
A court may not commit a juvenile to the DJJ "unless the judge of the court is 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.) Its decision to commit a juvenile to the DJJ " 'may be reversed on appeal only upon a showing that the court abused its discretion.' " (In re Jose T. (2010) 191 Cal.App.4th 1142, 1147.) This decision "will not be deemed to constitute an abuse of discretion where the evidence 'demonstrate[s] probable benefit to the minor from commitment to the [DJJ] and that less restrictive alternatives would be ineffective or inappropriate.' " (In re Pedro M. (2000) 81 Cal.App.4th 550, 555-556.) If consideration of less restrictive alternatives was before the court, "the fact the judge does not state on the record his consideration of those alternatives and reasons for rejecting them will not result in a reversal. . . . [H]owever, there must be some evidence to support the judge's implied determination that he sub silentio considered and rejected reasonable alternative dispositions." (In re Teofilio A. (1989) 210 Cal.App.3d 571, 577.)
B. There Is Substantial Evidence That Less Restrictive Alternatives Were Inappropriate.
The juvenile court considered and rejected the three less restrictive placements N.D.'s counsel recommended primarily because they were in unlocked, rather than locked, facilities. The juvenile court repeatedly expressed its view that N.D. presented too great a threat to public safety to be placed in an unlocked facility. Ample evidence supports the court's view.
Most importantly, the juvenile court found that N.D. committed four forcible sex offenses against Jane Doe. He raped her vaginally twice and committed an act of forcible sexual penetration and of sodomy by force. He preyed on Jane Doe's weakness as a methamphetamine addict by pretending to have the drugs she wanted to gain access to the privacy of her home, where he physically overpowered her, repeatedly forced her to the ground, restrained and choked her, and violated her repeatedly, causing her pain, terror, multiple bruises, and lasting trauma. There are few juvenile offenses as serious as those N.D. committed.
N.D. contends that, while his offenses were "serious," "[t]he circumstances of the offenses did not involve infliction of any injuries beyond minor bruising and were therefore less serious than those which have typically resulted in a DJJ commitment." This grossly mischaracterizes N.D.'s offenses. Again, he repeatedly, forcibly violated Jane Doe. By themselves, these are among the most serious and violent of sex offenses. (See People v. Rundle (2008) 43 Cal.4th 76, 143 ["stating "there is no doubt that a rape is a violent injury to another"]; People v. Burnick (1975) 14 Cal.3d 306, 329 [referring to forcible rape as "perhaps the most serious of sex crimes"].) He committed these offenses through the use of significant violence. N.D.'s argument is meritless.
N.D. also argues the court could not reasonably infer from Jane Doe's testimony that, as the court stated, she was "a very vulnerable victim" who "truly thought she was going to die." We disagree. Jane Doe testified that she was "terrified" by N.D.'s violent attack on her in secret, behind closed doors; it was not speculative for the court to infer from her testimony that she was a particularly vulnerable victim who feared for her life under these circumstances. N.D. also criticizes as speculative the court's remark that while listening to her testimony, all the court could think of was that the next victim would not live to testify. Viewed in context, the court's remark was an expression of its concern as the factfinder about N.D.'s dangerousness based on Jane Doe's testimony, not a prediction of his future conduct.
There was plenty of evidence to support the court's concern. N.D. was found through standardized testing to pose a "medium to high risk" of committing future sexual offenses. Further, rather than take responsibility for committing these very serious, forcible sex offenses, N.D. continually lied about and denied what he had done. He lied by denying that he forcibly raped, sodomized and attacked Jane Doe. He lied about what he wore at her apartment until confronted with the fact that his gray tank top was found there. He lied in denying that he had sex with Jane Doe until DNA tests proved otherwise. He had no reasonable explanation for Jane Doe's bruises or her race down her apartment hallway mostly unclothed and screaming for help. He denied to police that he previously committed misdemeanor sexual battery, contending that he was victimized in the course of an argument. He even interrupted the court as it stated its jurisdiction ruling to declare that Jane Doe was lying and that the court did not understand what " 'what goes on in the streets.' "
N.D.'s interruptions of the court at the jurisdiction hearing were the tip of the iceberg of another serious problem: It is apparent from the record that N.D. had a very difficult time controlling his aggressive and violent behavior. He sexually attacked Jane Doe just one week after being released from juvenile hall after an unsuccessful stay there following his misdemeanor sexual battery offense. After his sexual attack on Jane Doe, he was again placed in juvenile hall pending the resolution of this case. There, he continued to engage in threatening and violent behavior, threatening juvenile hall staff, engaging in multiple physical altercations, and twice causing so serious and unabating a disruption that he had to be subdued with OC spray. N.D. contends that this behavior did not establish that the less restrictive placements suggested by his counsel were inappropriate because juvenile hall was not one of them. This contention makes no sense. The juvenile court could reasonably infer from his behavior that N.D. would be disruptive and defiant in the future no matter where he was placed, and his behavior also gave credence to the concern that he might seek to abscond, whether or not he had in the past. In short, the court could reasonably conclude, based on N.D.'s medium to high risk of committing further offenses, continuing out-of-control behavior, including his commission of the present offenses barely a week after his release from juvenile hall, and lies, evasions and denials of responsibility about his brutal attack on Jane Doe that placing him in unlocked facilities from which he could leave posed an unacceptable threat to public safety.
N.D. asserts that the commission of one serious or violent felony does not support an inference that less restrictive alternatives are inappropriate. There is no such hard and fast rule. He cites several cases, but none support his argument; rather, they suggest only that, although a DJJ commitment is " 'normally a placement of last resort, there is no absolute rule that a [DJF] commitment cannot be ordered unless less restrictive placements have been attempted.' " (In re Calvin S. (2016) 5 Cal.App.5th 522, 528; see In re Samuel B. (1986) 184 Cal.App.3d 1100, 1104 [while a [California Youth Authority] commitment should be used "as a last resort," " 'there is no absolute rule that a Youth Authority commitment should never be ordered unless [less] restrictive placements have been attempted' "]; In re Anthony M. (1981) 116 Cal.App.3d 491, 503 [stating that "[i]n the absence of an accompanying past criminal record or serious delinquent conduct, CYA commitment should not be selected, unless alternative placement options are adequately explored"], italics added; In re Jose P. (1980) 101 Cal.App.3d 52, 57 [a CYA placement does not need to be deferred if "lesser remedies" "are clearly inappropriate"].) N.D.'s argument ignores altogether that, along with his commission of several forcible sexual offenses against Jane Doe, he engaged in aggressive and violent behavior before and after these offenses, including while his case was pending before the court. The court was entitled to consider and give great weight to this evidence.
"DJF" stands for the "Division of Juvenile Facilities," and is a part of the DJJ. DJF and DJJ are often used interchangeably. (In re Albert W. (2015) 240 Cal.App.4th 411, 413-414, fn. 1.)
The "California Youth Authority" was the former name for DJJ. (In re M.L. (2015) 243 Cal.App.4th 21, 26, fn. 2.)
The People also refer to school records contained in the files from his previous case in juvenile court indicating that he harassed female students at his school. We have not included these records in our discussion because the People do not establish that they were a part of the record considered by the juvenile court when it made its disposition decision.
N.D. makes several other arguments. He points out that the three programs recommended by his counsel also work with youths who have committed "very serious and violent sexual" offenses. Assuming for argument's sake this was the case (N.D.'s counsel's statements were not evidence), it has little, if any, bearing on the juvenile court's determinations that N.D. needed to be in a locked facility based on his particular history and circumstances. For example, N.D.'s counsel said nothing about whether such juveniles had taken responsibility for their offenses or whether they behaved violently and out of control over a long period of time in and out of institutional settings.
N.D. also points out that the probation department did not consider less restrictive placements before recommending the DJJ. However, the department indicated in its disposition memorandum that it had screened N.D. for out-of-home placement and determined it was inappropriate for him in light of the seriousness of his offenses, his denial of any responsibility for his actions, his refusal to cooperate with past placement efforts and his commission of the present offenses within a week of his previous release from juvenile hall. N.D. does not explain why the department was required to do more in light of these circumstances.
N.D. further argues that just because the three facilities were unlocked does not support the reasonable inference that they were inappropriate. He notes in particular his counsel's representation that Oakendell was in a very isolated location and had readily apprehended its runaways in the past and, referring to the court's reference to children's things in a residence next to Gateway, that N.D. had no history of abusing children. These arguments are also unpersuasive. A court need not wait for a "very, very dangerous" juvenile, which the court found N.D. to be, to abscond in order to determine Oakendell's ability to apprehend runaways and in any event N.D.'s counsel acknowledged that there were no openings at Oakendell at the time of the hearing. The court's reference to "children's things" was tangential to its main concern that Gateway was an unlocked facility from which N.D. could abscond. Again, even if there had been evidence supporting counsel's representations, the court could reasonably conclude that N.D. posed so serious a threat to public safety that he must be placed in a locked facility.
Nor does N.D. dispute that the court considered these facilities and that they were in fact unlocked. These facts distinguish the juvenile court's commitment decision from that reversed in another case that N.D. discusses at some length, In re Calvin S., supra, 5 Cal.App.5th 522. There, the appellate court reversed a trial court's DJJ commitment of a juvenile with developmental disabilities who had committed a very violent crime and been disruptive during the jurisdiction hearing. (Id. at pp. 526, 527, 529, 533-534.) The appellate court found the juvenile court abused its discretion when it rejected an alternative placement in juvenile hall simply because of its view that juvenile hall was " 'not a treatment center, but 'a detention center' "; as the appellate court emphasized, "[t]hat statement . . . is not evidence, let alone substantial evidence." (Id. at pp. 528-529, 532.) In fact, the statutory scheme indicated juvenile hall could in the proper circumstance be an appropriate placement option, and Calvin's long period of maximum confinement did not render it otherwise. (Id. at pp. 529-530, 532.) The court reversed on these grounds. (Id. at pp. 533-534.)
N.D. contends the juvenile court's statements about the inappropriateness of placing N.D. in unlocked facilities were " 'not evidence, let alone substantial evidence,' " similar to the juvenile court's statement in In re Calvin S. However, unlike in In re Calvin S., the juvenile court considered all of the alternative placements N.D.'s counsel raised and concluded they had a common and inappropriate characteristic: they were unlocked and, therefore, N.D. could abscond from any one of them to commit additional sexual offenses. We have already discussed the substantial evidence supporting the trial court's concern that N.D. posed a danger to the public.
N.D. also argues, citing section 727.1, subdivision (b), that the juvenile court erred by not considering an out-of-state placement before committing N.D. to the DJJ. However, section 727.1, subdivision (b) merely indicates that a juvenile court may commit a minor to an out-of-state placement based on certain findings, not that it must consider such a placement before committing a minor to the DJJ. N.D. does not cite any authority that establishes the court abused its discretion by not considering such placements, and for this reason his argument fails.
Section 727.1, subdivision (b) states in relevant part, "Unless otherwise authorized by law, the court may not order the placement of a minor who is adjudged a ward of the court on the basis that he or she is a person described by either Section 601 or 602 in a private residential facility or program that provides 24-hour supervision, outside of the state, unless the court finds, in its order of placement, that all of the following conditions are met . . . ."
In light of our conclusion, we do not determine whether, as the People contend, N.D. forfeited this claim by not raising it below.
Finally, N.D. contends that the juvenile court erred by making its decision based on its inappropriate observations about his "persona," "appearance" and "behavior." He argues that these are "amorphous and inherently subjective factors" that "would essentially preclude 'meaningful appellate review' " and "raise the risk that impermissible factors such as race, national origin, or religion would intrude into the determination process." We disagree. There is no indication in the record that the court was referring to N.D.'s race, national origin or religion in its remarks. And we see no reason why a court acting as a fact finder cannot or should not observe and consider the demeanor of a party in the courtroom when making determinations such as a juvenile disposition. (See, e.g., In re George T. (2004) 33 Cal.4th 620, 634 ["Because the trier of fact is in a superior position to observe the demeanor of witnesses, . . . we will defer to the juvenile court's credibility determinations"]; In re Marriage of Sheridan (1983) 140 Cal.App.3d 742, 749 [concluding that whether a spouse seeking support had unreasonably delayed seeking employment "is a question addressed peculiarly to the trial court which heard the party's testimony and observed the party's demeanor at trial"].)
Nonetheless, some of the court's language, such as that it was frightened by N.D.'s "persona" as it observed him in the courtroom, was unnecessary. A juvenile court is charged with guiding a minor's rehabilitation. Yet, such language suggests, however inadvertently, a condemnation of a juvenile's immutable, essential personality and for this reason should not be used. Nonetheless, while N.D. contends there was no extemporaneous record of the demeanor referred to by the court, his interruptions of the court during its announcement of his jurisdiction ruling to tell the court Jane Doe was lying and that the court knew nothing about life in the streets provides support for the court's concerns about his courtroom conduct. Further, the court's comments read in context indicate it was expressing an appropriate concern about N.D.'s potential dangerousness based on the nature and circumstances of his offenses, his denial of responsibility and his continual behavior problems, not just his demeanor in the courtroom as N.D. contends. It is apparent from the record that the court was primarily concerned that N.D.'s aggressive violent behavior and failure to take responsibility for this behavior posed a threat to public safety. This concern is supported by substantial evidence.
N.D. also mischaracterizes one of the court's comments in claiming that the court referred to him as a "malevolent . . . man." The court actually said, "I've never sent anyone to Oakendell with the kind of malevolent, vicious behavior that this man did to this victim," a far different comment with which we take no issue.
"Persona" is defined as, among other things, "a person's perceived or evident personality." (<http://www.dictionary.com/browse/persona> [as of Nov. 17, 2017].)
In short, there was sufficient evidence to support the juvenile court's determination that it would be inappropriate to place N.D. in less restrictive facilities than the DJJ.
C. There is Substantial Evidence That N.D. Would Probably Benefit from a DJJ Commitment.
N.D. also makes several arguments as to why there was insufficient evidence that he would probably benefit from a DJJ commitment. None is persuasive.
"No ward of the juvenile court shall be committed to the Youth Authority unless the judge of the court is 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.) Thus, "[a] juvenile court must determine if the record supports a finding that it is probable the minor will benefit from being committed to the DJJ. [Citation.] . . . There is no requirement that the court find exactly how a minor will benefit from being committed to the DJJ." (In re Jonathan T. (2008) 166 Cal.App.4th 474, 486.) The court is only required to find it is probable a minor will benefit from being committed. (Ibid.) The juvenile court made such a finding here. Plenty of evidence supports this finding, including that the DJJ would provide a secure facility that ensured N.D.'s continued presence and participation; evaluate him at intake to determine what services he needed; provide extensive special therapeutic, individualized treatment and a highly structured environment to him as a sex offender with trained staff and specially assigned psychologists; evaluate his individual abilities and deficiencies; and include in his program a special seven-stage curriculum designed to help sex offender youths reflect on, take responsibility for and move beyond their problematic behaviors, to set career, vocational and educational goals, and make future plans.
N.D. does not directly challenge the merits of the DJJ program and environment. Instead, rather than look at the benefits he would receive from the DJJ program and environment as a whole, he attacks specific aspects of the experience that he considers to be deficient. He first argues the court abused its discretion in finding a probable benefit because a DJJ commitment would mean he subsequently would be required to register for the rest of his life as a sex offender. Any juvenile adjudicated a ward of the juvenile court pursuant to section 602 who is "discharged or paroled from the Department of Corrections and Rehabilitation to the custody of which he or she was committed . . . because of the commission of," among other things, forcible sex offenses of the kind N.D. committed is required to register as a sex offender for the rest of his life under the Sex Offender Registration Act, Penal Code section 290 et seq. (Pen. Code, § 290.008, subds. (a), (c)(2); In re J.C. (2017) 13 Cal.App.5th 1201, 1203 [commitment to the DJJ for violation of a crime specified in Penal Code section 290.008 required lifetime registration as a sex offender].) N.D. argues registration does not reduce recidivism or improve community safety, and that its stigma is antithetical to the philosophy of the juvenile justice system, citing the publications he submitted to the juvenile court that criticized the overall effectiveness of sex offender registration. He is also critical of the juvenile court's reasons for rejecting the findings of these publications.
N.D.'s sex registration arguments are unpersuasive for two reasons, regardless of the findings of the publications he cites or the juvenile court's reasons for rejecting them. First, the court's duty was to determine where to place N.D. in an effort to rehabilitate him consistent with public safety. (§ 202, subds. (b), (d).) This determination pertains to the care, treatment and guidance of the minor while he or she is under the jurisdiction of the juvenile court, and is not about what the law may require of the minor after that point. (See ibid.) Second, the Legislature has determined in its discretion that sex offender registration for persons in N.D.'s circumstances has merit. Were a court to reject a DJJ commitment in order to enable a sex offender to avoid this registration requirement based on its own view of public policy considerations such as those articulated in the academic publications N.D. cites, it would frustrate the purpose of section 290.008. Such policy considerations are for the Legislature, not this court, to decide.
N.D. also contends that the separate housing of sex offenders at DJJ would also stigmatize him. The record does not support this assertion. The DJJ senior psychologist supervisor testified that DJJ had "minimal issues" around sex offenders being labeled or targeted.
Next, N.D. argues that there was insufficient evidence that a DJJ commitment would allow N.D. to maintain a relationship with his family, as required by section 202. N.D. cites section 202, which provides in relevant part, "If removal of a minor is determined by the juvenile court to be necessary, reunification of the minor with his or her family shall be a primary objective. If the minor is removed from his or her own family, it is the purpose of this chapter to secure for the minor custody, care, and discipline as nearly as possible equivalent to that which should have been given by his or her parents." (§ 202, subd. (a).) Among other things, he also cites section 706.6, which provides that a probation department's case plan shall include a description of an appropriate placement for a minor, which "is a placement in the least restrictive, most family-like environment that promotes normal childhood experiences, in closest proximity to the minor's home, that meets the minor's best interests and special needs." (§ 706.6, subd. (c)(3)(B).)
The People argue that N.D., by not first raising them below, has forfeited this argument and his Individualized Education Program (IEP)/special needs argument, which we will soon discuss. The People contend these arguments are subject to forfeiture rules because they attack the court's "sentencing discretion." N.D. counters that they cannot be forfeited because they are challenges to the sufficiency of evidence to support the court's finding of probable benefit. (See In re Isabella F. (2014) 226 Cal.App.4th 128, 136 [mother requesting a contested jurisdictional/dispositional hearing preserved her right to challenge the sufficiency of the evidence supporting juvenile court's orders].) We do not decide these forfeiture contentions because we reject N.D.'s arguments on the merits.
According to N.D., these statutory directives were not satisfied because "[t]here was no evidence presented at the disposition hearing that DJJ would help [N.D.] maintain his relationship with his family by, for example, providing family counseling, in-person visiting, or telephonic communication. . . . Since there was . . . no evidence that DJJ would help maintain [N.D.'s] relationship with his family, which [is] one of the primary purposes of the juvenile law, there is insufficient evidence that [N.D.] would receive a probable benefit from the DJJ commitment, as required."
N.D. does not provide legal authority establishing that the statutory directives he cites require any special services regarding his family relationships, and the directives themselves do not refer to them. Further, we think the court could reasonably conclude N.D. would be able to communicate with his family without the need for specific evidence to that effect. Most importantly, the juvenile court could reasonably conclude that N.D.'s violent, aggressive and criminal behavior was the greatest impediment in his ability to effectively reunify with his family, and that his rehabilitation was of the highest priority to enable this reunification to occur. The DJJ senior psychologist supervisor who testified at the disposition hearing provided evidence from which the court could conclude that N.D. and his family relationships would probably benefit from his participation in the extensive therapeutic, disciplined program available at the DJJ. N.D. does not establish the court abused its discretion regarding his family relationships.
Next, N.D. argues there is insufficient evidence and no court findings that the DJJ would implement his Individualized Education Program or provide him with the educational services he needs given the fact that he was a minor with exceptional needs. Again, we disagree. As we have discussed, the senior psychologist supervisor testified that the DJJ would evaluate him at intake to determine what services he needed, and would provide him with individualized treatment that took into account his individual abilities and deficiencies. This testimony was consistent with the DJJ's legal obligation, pursuant to section 1120, to "assess the educational needs of each ward upon commitment and at least annually thereafter . . . includ[ing] a projection of the academic, vocational, and psychological needs of the ward," which assessments "shall be used both in making a determination as to the appropriate educational program for the ward and as a measure of progress in subsequent assessments of the educational development of the ward." (§ 1120, subd. (b).) Further the DJJ is legally required to "be responsive to the needs of all wards, including those who are educationally handicapped." (Ibid.) In this context, the court could reasonably conclude from the supervisor's testimony that the DJJ would work to meet N.D.'s special educational needs. Further, the court's findings indicate that it did so. Its findings incorporated the recommended findings of the probation department that, as stated one immediately following the other, "[t]he mental and physical conditions and qualifications of the minor are such as to render it probable that he will be benefitted by the reformatory educational discipline or other treatment provided by the DJJ," "minor has exceptional needs," and "youth has an Individualized Education Program." The court's commitment order, filed on September 19, 2016, states that N.D. was an individual with exceptional needs and ordered that his IEP be furnished to the DJJ when obtained.
Finally, N.D. contends the court by its own statements at the disposition hearing indicated it was not "fully satisfied' that N.D. would probably benefit from the DJJ commitment and that it was committing him to the DJJ "primarily for punitive rather than rehabilitative reasons." These contentions are not supported by the record. As indicated by the court's statements, from which we have extensively quoted, the court expressed a concern about whether N.D. could be rehabilitated and about his ongoing dangerousness. The court was clearly convinced that the DJJ was the best placement possible for N.D. It stated that it believed "all the rehabilitation and treatment and the education provided by the [DJJ] would benefit [N.D.] tremendously" and that the DJJ had "fabulous programs."
DISPOSITION
The rulings appealed from are affirmed.
/s/_________
STEWART, J. We concur. /s/_________
RICHMAN, Acting P.J. /s/_________
MILLER, J.