People v. N.C.(In re N.C.)

39 Cal.App.5th 81

251 Cal.Rptr.3d 629

IN RE N.C., a Person Coming Under the Juvenile Court Law.

The People, Plaintiff and Respondent,

v.N.C., Defendant and Appellant.

A154725

Court of Appeal, First District, Division 3, California.

Filed August 26, 2019

Jeffrey A. Glick, Oakland, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Donna M. Provenzano and Christina vom Saal, Deputy Attorneys General, for Plaintiff and Respondent.

Wick, J.^*

This is an appeal from the juvenile court's dispositional order committing minor N.C., born in 2000, to the Division of Juvenile Justice (DJJ) for a maximum period of confinement of nine years following his admission to one count of forcible oral copulation and one count of sexual battery. These counts stem from an incident in which N.C. and another minor, G.K., sexually abused a clearly intoxicated 17-year-old female high school student outside a private house party after a homecoming dance.

On appeal, N.C. challenges his commitment to DJJ as an abuse of the juvenile court's discretion, reasoning there is no evidence this commitment would be of probable benefit to him or that a less restrictive placement would be ineffective or inappropriate. For reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On October 20, 2017, a juvenile wardship petition was filed pursuant to Welfare and Institutions Code section 602¹ alleging that minor committed the following offenses: kidnapping for sexual purposes ( Pen. Code, § 209, subd. (b)(1) ) (count one); rape in concert ( Pen. Code, § 264.1 ) (count two); forcible oral copulation in concert ( Pen. Code, § 288a, subd. (d) ) (counts three and four); and forcible oral copulation ( Pen. Code, § 288a, subd. (c)(2) ) (counts five and six). In addition, as to counts two, four, and six, the petition alleged special circumstances kidnapping ( Pen. Code, § 667.61, subds. (b), (e) ).

This petition arose from the following events occurring at a homecoming party at a private residence on the evening of September 30, 2017.² The 17-year-old victim was already inebriated when she arrived outside the party after drinking alcohol with a friend. She greeted two acquaintances, minor and G.K., who were over to the side of the yard. When she approached the boys, G.K. pulled her over to a nearby bench. Feeling weak and intoxicated, she sat down. The boys then stood in front of her with their genitals exposed, each trying to force her to orally copulate him. She refused, closing her mouth and turning her head away. However, as she tried to leave and enter the house party, she fell to the ground. G.K. told her, " ‘No you're not,’ " and grabbed her arm, pulling her toward a nearby car, where he pushed her to her knees.

At the car, the boys again tried to force the victim to orally copulate them. Minor tried to put his penis in her mouth, but she kept her mouth shut. He admitted he exposed his penis to her and slapped her on the face with it before they got into the car, and he also admitted forcing her head toward his penis while they were in the car, in an effort to force her to orally copulate him. Minor retreated only when she forcibly told him, " ‘No.’ " G.K., however, pulled her onto his lap, pulled down her leggings and raped her despite her continuous assertions of " ‘No,’ " as minor " ‘mostly just stood there ....’ " As G.K. continued his attack, she was able to make a 10-second audio recording during the incident in which she can be heard repeatedly saying, " ‘No, please stop, I want to leave.’ " G.K. can also be heard, telling her, " ‘No, you're not leaving.’ "

The following Monday at school, the victim told a school counselor about the incident but stated that it happened to " ‘a friend.’ " Two weeks later, she acknowledged to the counselor that she was the " ‘friend’ " involved in the incident. The victim's friend later told investigating officers that the victim was " ‘really drunk’ " and that both boys took her to a car and " ‘tried to have sex with her,’ " but that minor left before G.K. raped her. In a recorded pretext phone call, G.K. admitted having sex with the victim. In subsequent police interviews, G.K. denied raping her, and minor admitted both boys tried to force her to orally copulate them (once in the side yard and once in the car).

On April 30, 2018, the petition was amended to add one felony count of sexual battery ( Pen. Code, § 243.4 ) (count seven), and, pursuant to a negotiated disposition, minor admitted counts five and seven and the court dismissed the remaining counts. In reaching this disposition, minor was advised that count five, forcible oral copulation, is a serious felony and a strike offense that made him eligible for commitment to DJJ and subject to sex offender registration.

In the probation report, probation officer Bailey Rodriguez concluded home supervision was not an option in light of several circumstances, including the recent arrest of minor's mother, incarceration of his father, and recent detention of his brother in juvenile hall following a probation violation. Rodriguez recommended minor's commitment to DJJ based on, among other factors, the seriousness of his offense, his score of 6 on the JSORRAT-II test (indicating he posed a moderate risk of committing another sexual offense in the future), and the fact that DJJ offers a "seven-stage Sexual Behavioral Treatment Program [SBTP] in a therapeutic living unit devoted to the comprehensive treatment of resident sex offenders."

Following a contested disposition hearing, the juvenile court adjudged minor a ward of the court and committed him to DJJ with a maximum confinement time of nine years. This timely appeal followed.

DISCUSSION

On appeal, minor challenges his commitment to DJJ as an abuse of discretion. Minor reasons the evidence was insufficient to prove that he would obtain a probable benefit from this commitment, or that less restrictive alternatives would be ineffective or inappropriate in his case. As such, minor asks this court to reverse the commitment order and remand for a further disposition hearing.

We review the juvenile court's commitment decision for abuse of discretion, indulging all reasonable inferences to support its decision. ( In re Angela M. (2003) 111 Cal.App.4th 1392, 1396, 4 Cal.Rptr.3d 809.) " ‘ " ‘In determining whether there was substantial evidence to support the commitment, we must examine the record presented at the disposition hearing in light of the purposes of the Juvenile Court Law.’ " ’ [Citation.] The general purpose of the law, which encompasses both dependency and delinquency proceedings, is described in section 202, subdivision (a), which states that ‘The purpose of this chapter is to provide for the protection and safety of the public and each minor under the jurisdiction of the juvenile court and to preserve and strengthen the minor's family ties whenever possible, removing the minor from the custody of his or her parents only when necessary for his or her welfare or for the safety and protection of the public. 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. This chapter shall be liberally construed to carry out these purposes.’ " ( In re Carlos J. (2018) 22 Cal.App.5th 1, 5, 231 Cal.Rptr.3d 160.)

Because rehabilitation is one of the primary objectives of juvenile court law, our statutory scheme " ‘contemplates a progressively more restrictive and punitive series of dispositions starting with home placement under supervision, and progressing to foster home placement, placement in a local treatment facility, and finally placement at the [DJF]. [Citation.]’ "³ ( In re Carlos J. , supra , 22 Cal.App.5th at pp. 5–6, 231 Cal.Rptr.3d 160.) At the same time, another primary objective of juvenile court law is to protect public safety. As such, there is no absolute rule that a DJJ commitment must be reserved as a last resort placement and cannot be ordered unless less restrictive placements have been attempted where, in a particular case, a DJJ commitment is deemed necessary to protect the public safety. ( Ibid. ; accord, In re Carl N. (2008) 160 Cal.App.4th 423, 433, 72 Cal.Rptr.3d 823.) However, "to ensure the necessity of a DJF placement, there must be evidence ‘supporting a determination that less restrictive alternatives are ineffective or inappropriate.’ [Citation.] More importantly in the present case, ‘there must be [substantial] evidence in the record demonstrating ... a probable benefit to the minor by a [DJF] commitment ....’ ( In re Angela M. [, supra ,] 111 Cal.App.4th [at p.] 1396 [4 Cal.Rptr.3d 809] [citation]; [citations].) That is because section 734 provides that ‘No ward of the juvenile court shall be committed to the [DJF] 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 [DJF].’ " ( In re Carlos J. , supra , at p. 6, 231 Cal.Rptr.3d 160.) " ‘ "[A] trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence." ’ " ( In re Nicole H. (2016) 244 Cal.App.4th 1150, 1154, 198 Cal.Rptr.3d 823.)

Here, minor contends the juvenile court abused its discretion by committing him to DJJ because the record does not contain sufficient evidence that this commitment would provide him a probable benefit or that one of the proposed less restrictive alternative programs would be ineffective or inappropriate. Minor also...