The People v. Robert C

THE PEOPLE, Plaintiff and Respondent,

v.ROBERT C., Defendant and Appellant.

A127357

No. J39597

COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Filed: March 11, 2011

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

I. Introduction

After defendant Robert C. admitted several counts of a Welfare and Institutions Code section 602 petition filed by the Fresno District Attorney, including an allegation of violating Penal Code section 288, subdivision (a), ¹ the matter was transferred to Solano County for disposition. The Solano County juvenile court committed defendant to the Division of Juvenile Facilities (DJJ) for a potential maximum term of four years. On appeal, defendant contends the juvenile court abused its discretion in committing him to DJJ, and further contends he is entitled to a trial by jury before he can be subject to the "lifetime burdens" flowing from his section 288, subdivision (a), adjudication—sex offender registration, residency restrictions under "Jessica's Law" (Proposition 83) and potential civil commitment as a sexually violent predator. We affirm.

II. Background

We summarize here only the facts germane to the matters raised on appeal.

In June or July 2008, defendant's eight-year-old stepsister told her parents— defendant's father and stepmother—that several weeks earlier, she and defendant had played hide-and-seek and had ended up in the bathroom, where defendant undressed and masturbated in front of her. She said defendant forced her to touch his penis, and then to rub her hand back and forth. He also told her to suck and lick his testicles. She refused and ran out of the bathroom. When confronted by his parents, defendant denied the conduct. Several weeks later, during a family meeting, he admitted masturbating in front of his stepsister, but continued to deny touching her. He was sent to live with his mother in Solano County. On November 25, 2008, the Fresno District Attorney filed a Welfare and Institutions Code section 602 petition alleging that on or about June 1, 2008, through September 1, 2008, defendant committed a lewd act on his eight-year-old stepsister (§ 288, subd. (a)). On January 15, 2009, defendant admitted the allegation, but withdrew his admission in March, after a psychological evaluation found him unsuitable for deferred entry of judgment.

In February 2009, defendant's stepbrother told his parents defendant had molested him two years earlier when he was eight years old. He later said that when he was nine years old, defendant threatened him by holding a knife to his throat and putting a pillow over his face as though to suffocate him. He claimed defendant warned him not to tell anyone about the incidents, and he was too frightened to say anything until his sister disclosed what defendant had done to her. On April 30, 2009, the Fresno District Attorney filed a supplemental petition alleging that on or about March 1, 2007, through April 1, 2007, defendant also committed crimes against his stepbrother. On May 12, 2009, the juvenile court dismissed all counts of the supplemental petition except count 5 alleging assault likely to produce great bodily injury (§ 245, subd. (a)(1)). On July 14, two additional counts were added, assault with a deadly weapon (§ 245, subd. (a)(1)) and dissuading a witness from testifying (§ 136.1, subd. (a)(1)).

On July 27, 2009, defendant admitted the alleged lewd act on his stepsister and the assault with a deadly weapon on his stepbrother. The remaining counts were dismissed. The case was transferred to Solano County for disposition.

As noted above, while the case was venued in Fresno, the juvenile court had ordered a psychological evaluation to determine whether defendant was eligible for deferred entry of judgment. The evaluation, prepared by Nilakshi Wanaguru, was submitted on March 3, 2009, and concluded defendant was ineligible because he denied molesting his stepsister, displayed no remorse, guilt or empathy, viewed himself as "extremely virtuous," and was over 18 years old. Wanaguru believed there was a significant risk defendant would reoffend and recommended he participate in individualized sex offender therapy.

The Solano court ordered a further evaluation, which was prepared by Jennifer Kirkland and submitted on August 22, 2009. Kirkland reported defendant had been home schooled, was at grade level in reading but below in math and spelling, and had had no established routines. She concluded this resulted in his having "inadequate social skills," poor judgment, and an inability to anticipate consequences. He was "socially immature" and "developmentally arrested." She believed these "deficits" likely contributed to his "internal state" that led him to "sexually offend against his younger siblings." But "[w]here and how [he] picked up sexual acting out with children is unfathomable." Everyone involved denied that defendant had been a victim of such behavior. "Sexual risk measures" placed defendant "at the moderate to moderate high range." Kirkland believed defendant's admission of some improper conduct, although he continued to deny any sexual misconduct as to his stepbrother, was "real progress." Based on this "breakthrough," Kirkland thought defendant was "amenable to outpatient treatment provided there is substantial structure and social support for him in the community. To place [him] in the community without sufficient support would... set him up to fail." Kirkland observed "even though [defendant] is deemed amenable to outpatient treatment, he may have the most opportunities for actual help and support in the DJJ system." If defendant remained in the community, "ironclad rules and automatic diversion to DJJ forviolation of terms of probation need to be communicated and enforced. If given any leeway for undermining his own rehabilitation, there is a chance of behavioral deterioration and possible reoffense."

On September 18, 2009, defense counsel advised the court an elderly friend of defendant's mother might consider letting defendant live with him. The court ordered probation to investigate the potential placement. Probation reported the individual, Mr. Cernota, was 79 years old and not concerned with defendant's offenses, commenting "boys will be boys." Cernota's adult daughter was very upset about a possible placement of defendant, and stated her father was barely able to care for himself and was mentally unstable. Probation concluded Cernota's home was not an appropriate placement.

Defendant's mother then proposed placement with a Mrs. Munoz. Probation reported Munoz thought defendant simply needed "an address" and was willing to let him live in a trailer behind her business. The trailer is the restroom for the employees. Munoz would not provide defendant with a job or transportation to school, counseling or support services. Probation concluded this would not provide defendant with a stable living situation or the support and resources necessary for treatment.

The dispositional report was filed on December 2, 2009. The report recounted difficulties and challenges in defendant's upbringing. It examined community placement options and concluded none was satisfactory. Defendant's mother and stepfather had lost their home to foreclosure, and his mother was also "colluding with [defendant] in denial" of the allegations. His older brother was employed and living with friends. His father would not allow defendant to return to live with his family. His stepsiblings were still traumatized after a year of counseling. His grandfather was supportive, but lived in too remote a location for transportation or work prospects. His uncle and aunt lived out of state, but near an community park and playground, not acceptable for a convicted sex offender. Other community placements were unavailable or inappropriate for a 19-year-old sex offender. Defendant could remain at DJJ until he was 25 years old. A DJJ placement would allow him to complete high school, and to take college or vocationaltraining classes. In addition, DJJ would be obligated to provide a sex offender program, and it offered a two-year Sexual Behavior Treatment Program (SBTP).

At the dispositional hearing, both defendant and the People presented witness testimony. Daniel Macallair, executive director of the Center of Juvenile and Criminal Justice, testified for defendant. Macallair has evaluated DJJ since 2002, including participating on the Little Hoover Commission Advisory Panel examining conditions within DJJ. His most recent report, in 2009, recommended DJJ should be shut down. Macallair referred to three reports of the Special Master in Farrell v. Cate (Alameda County Superior Court No. RGO3079344). That lawsuit challenged the adequacy of many conditions at the DJJ, and a comprehensive consent decree was entered in 2004.² One of the areas of concern was the DJJ's sexual behavioral treatment units, and the reports indicated DJJ had not achieved full compliance with the decree in that regard or in the area of youth safety. Macallair was critical of the Chaderjian facility, where defendant would be placed, expressing concern about overcrowding and gang violence. He also expressed concern about whether there would be a delay in receiving treatment and identified deficiencies in the program, including no uniform SBTP curriculum, insufficient staff, and inadequate record keeping. He recommended defendant be placed in juvenile hall, with SBTP counselors traveling to the hall to work with him until he is 21 years old. Macallair acknowledged such a placement was "out of the ordinary" and "on the margins" and had not spoken with anyone at the juvenile hall about it.

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