California Cases June 03, 2020: People v. K.K. (In re K.K.)

Case Description

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. JJC-JV-DE-2017-0001516)

Minor K.K., who was 16 years old at the time of the charged incident, admitted allegations of assault by means of force likely to produce great bodily injury, oral copulation with a person under 18 years of age, and sodomy by force. Following a contested dispositional hearing, the minor was adjudged a ward of the San Joaquin County Juvenile Court and committed to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ). On appeal, the minor contends his DJJ

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commitment was an abuse of discretion because it was not in his best interest and the juvenile court failed to seriously consider a less restrictive placement that would be more beneficial to him. We disagree and shall affirm the judgment.

The San Joaquin County District Attorney filed a juvenile wardship petition under Welfare and Institutions Code section 602, charging the minor with one count of attempted burglary (Pen. Code, §§ 664/459), two counts of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)), one count of oral copulation by force (former § 288a, subd. (c)(2)(A)), one count of sodomy by force (§ 286, subd. (c)(2)(A)), and one count of torture (§ 206). The prosecution amended the oral copulation count to allege that defendant committed oral copulation with a person under the age of 18.

The victim was the minor's former girlfriend. On the night of the incident, the victim called the police to report that the minor had entered her house and refused to leave; her parents were out of town. The victim and her friend then went to stay at another friend's house. The minor called and sent the victim text messages throughout the night and posted pornographic photos of her on social media. He threatened to post additional nude photographs of her if she did not meet him. She met him at his house and during the encounter, when she tried to leave, he threatened to send the photographs to her parents. He grabbed the victim by the neck and "squeezed her throat hard enough for her to get light headed." After he released his grip, she began crying and he asked her how it felt when he choked her and whether she was " 'close to death.' " He then got on top of her. The victim tried to scream for help but because he was choking her, she could

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not make a sound. He then threatened to publish the nude photographs of her on the internet if she did not orally copulate him. She complied for two minutes before vomiting. He then threatened to publish the photographs if she did not allow him to have anal sex with her. She said no, and he pushed her down and anally raped her. He then anally raped her a second time and told her that he wanted to make sure it hurt because she deserved it. He choked her again and said, " 'I should just kill you right now. You fucking deserve it. I should kill you right now.' "

At the fitness hearing, the minor admitted one count of assault by means of force likely to produce great bodily injury, oral copulation with a person under 18 years of age, and sodomy by force; the remaining counts were dismissed. The probation department filed a dispositional report recommending that the minor be committed to DJJ for treatment and rehabilitative programs that address his violent and criminal behavioral issues. The report noted that despite the fact this was defendant's first referral to the probation department for a criminal matter, the current offenses were "violent, callous, [and] appeared calculating in the way the behavior was implemented." The report further noted that the minor "received multiple write-ups concerning non-compliance with the housing guidelines" during his stay in juvenile hall.

At the dispositional hearing, Josie Montano, a liaison for DJJ, testified as an expert. Montano explained that in order for a minor to be committed to DJJ, the offense must be enumerated in Welfare and Institutions Code section 707, subdivision (b), or Penal Code section 290, and the minor's offenses are enumerated in both of the aforementioned sections. Based on her review of the minor's case, Montano opined that he would benefit from the programs at DJJ because he would be treated in an evidence-based treatment program and his confinement would protect the public. Fong Ly, the supervisor of the probation department's juvenile placement unit, testified that there are various types of group homes specifically for sex offenders: one in San Joaquin County, one in Sacramento County, and three outside of California. Ly explained that the

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probation department will generally not recommend that a minor be committed to a group home for sex offenders if the minor is older than 17 years two months. The minor was 17 years eight months at the time of the dispositional hearing. Ly testified that based on the gravity of the offenses and because the minor was over 17 and a half and had not participated in school or other structured programs at juvenile hall, he was not a suitable candidate for a group home placement. Debra Mendoza, a consultant in juvenile justice and criminal mitigation, testified as an expert in juvenile justice on behalf of the minor. She recommended against a DJJ commitment because it is the most restrictive setting and the minor had not been treated in a less restrictive setting yet.

During the hearing, defense counsel argued that the minor should be placed in a group home placement because he had no prior record and had educational difficulties. Counsel characterized defendant's offenses as "a crime of intimacy," claiming that defendant "loved [the victim] and he didn't know how to act." The prosecutor countered that public safety was a "huge factor" because the minor "could just walk away from any group home." Additionally, the prosecutor argued that DJJ was appropriate because of its more extensive evidence-based sexual offender treatment program which was lacking in the information about the proposed group homes. Further, the prosecutor observed that it was unclear whether the two proposed group homes would accept the minor. Finally, the prosecutor observed that the minor refused to participate in programs at juvenile hall or attend school.

After hearing argument, the juvenile court observed: "I agreed with the initial assessment that [the minor] was appropriate for juvenile court. I think that's a huge break, given where he could have wound up if he was tried as an adult. . . . That [in] no way detracts from the seriousness of the crime. It was very violent, very callous." The court further noted it was "particularly concerned with the choking of the victim in the case." The court also observed that the minor had numerous reports from juvenile hall, commenting that there were sometimes "two or three per day." The court reasoned, "I've

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got no confidence that he's going to do well in treatment. I hope he does, but certainly at this point I think the choice is a shorter program or longer program. I think the longer program as suggested, again, by probation is the appropriate program in the case." Accordingly, the court adopted the recommendation of the probation department and committed the minor to DJJ. The court adjudged him a ward of the juvenile court and set the maximum time of confinement as nine years eight months.

The minor contends the juvenile court abused its discretion when it committed him to DJJ because the commitment was not in his best interest and the court failed to seriously consider a less restrictive placement that would be more beneficial to him. In particular, he claims that DJJ wanted to punish him and was "more concerned with retribution than rehabilitation." He further claims that the juvenile court abused its discretion because a DJJ commitment was improperly predetermined. We disagree.

Minors under the juvenile court's jurisdiction must receive "care, treatment, and guidance consistent with their best interest and the best interest of the public." (Welf. & Inst. Code, § 202, subd. (b).) "The decision of the juvenile court may be reversed on appeal only upon a showing that the court abused its discretion in committing a minor to [DJJ]. [Citations.] An appellate court will not lightly substitute its decision for that rendered by the juvenile court. We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them. [Citations.] 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." ( In re Michael D . (1987) 188 Cal.App.3d 1392, 1395.) Those purposes include the "protection and safety of the public"; to that end, punishment is now recognized as a rehabilitative tool. (Welf. & Inst. Code, § 202, subds. (a), (b); see In re Michael D ., at p. 1396.) The juvenile court's commitment decision does not constitute an abuse of discretion where the

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evidence "demonstrate[s] probable benefit to the minor from commitment . . . and that less restrictive alternatives would be ineffective or inappropriate." ( In re George M . (1993) 14 Cal.App.4th 376, 379.)

The minor asserts that the court failed to adequately consider alternative less restrictive placements. In particular, he asserts there is no evidence in the record as to why the group homes would be either inappropriate or ineffective. We disagree. The record demonstrates that the juvenile court considered less restrictive placements and did not abuse its discretion in rejecting them as ineffective or inappropriate. The probation report recommended DJJ as a more appropriate placement than a less secure facility due to the violent nature of the offenses and because the minor "pose[d] a threat to the safety and security and well-being of the community and the victim." The probation report further noted that DJJ would be able to provide the minor with extensive counseling, therapy, and a sexual behavior treatment program to reduce the risk of future sexual offenses. The court heard extensive expert testimony recommending different placement proposals. As the DJJ liaison testified, the DJJ offered an evidence-based sexual offender treatment program. There was evidence in the record that the DJJ programs would provide the minor with extensive, long-term sex offender counseling in a highly structured, disciplined, and closely supervised environment that would be beneficial to him. Further, the supervisor of the probation department's juvenile placement unit testified that the considerations in recommending a DJJ placement as more appropriate and effective than a less restrictive placement were the gravity of his offenses, his age of over 17 and a half, and his failure to participate in school or other structured programs at juvenile hall.

It can reasonably be inferred from the record that a less secure facility would have been an inappropriate placement for the minor. As the court observed, he failed to participate in programs or school at the juvenile hall and had numerous write-ups, sometimes "two or three per day." The court reasonably concluded that his behavior in

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juvenile hall did not bode well for his success in a less restrictive placement. Further, the court reasonably considered the severity of the minor's offenses as a matter of public safety. In view of the totality of the evidence in the record, the juvenile court reasonably concluded that the minor's best chance at rehabilitation was the DJJ. Such a restrictive environment was necessary both to ensure the minor's participation in the rehabilitative treatment program and to address the court's well-founded public safety concerns. "The purposes of juvenile wardship proceedings are twofold: to treat and rehabilitate the delinquent minor, and to protect the public from criminal conduct. [Citations.] The preservation of the safety and welfare of a state's citizenry is foremost among its government's interests . . . ." ( In re Jose C . (2009) 45 Cal.4th 534, 555.)

While the minor cites two cases extensively to support his position, In re A . R . (2018) 24 Cal.App.5th 1076 and In re Joseph H . (2015) 237 Cal.App.4th 517, both are inapposite. The minor contrasts In re A . R ., which upheld a more restrictive commitment on appeal, arguing that in A . R . it was clear less restrictive alternatives were not effective and were inappropriate because the minor had been placed in less restrictive programs many times and continued to re-offend. The minor's implied argument is that a DJJ placement is only warranted when less restrictive programs have failed. The California Supreme Court has expressly rejected this argument, reasoning that a court does not "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.) Indeed, as we explained ante , there was sufficient evidence in the record to support the minor's commitment to DJJ before trying less restrictive placements. The minor further contrasts In re Joseph H . because there, the record showed there was evidence that only the DJJ could provide the education and treatment that the minor needed. (See In re Joseph H ., at pp. 543-544.) However, it is not necessary that DJJ be the only appropriate placement. Even if the record reasonably justifies an alternative placement, we will not find an abuse of discretion if there is substantial evidence of a "probable benefit to the minor from

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commitment . . . and that less restrictive alternatives would be ineffective or inappropriate." ( In re George M ., supra , 14 Cal.App.4th at p. 379; see In re Reynaldo R . (1978) 86 Cal.App.3d 250, 256 [DJJ commitment was not an abuse of discretion despite the fact that the minor's record justified less restrictive disposition].)

The minor further contends that the trial court's references to the fact the minor could have been transferred to criminal court and tried as an adult indicate that the court's decision was "predetermined." This claim is speculative and not supported by the record. The case the minor cites in support of his argument, In re J . L . P . (1972) 25 Cal.App.3d 86, is inapposite. There, the juvenile court gave the minor a choice between being tried as an adult in criminal court or in juvenile court but told the minor that if he remained in juvenile court and the petition was sustained, that the minor would be committed to DJJ. ( Id . at p. 88.) The Court of Appeal found that this was an inappropriate predetermination of the disposition before the jurisdictional and dispositional phases of proceedings. ( Id . at p. 90.) In contrast, here, the record shows the juvenile court heard extensive evidence at the dispositional hearing, and while the court commented on the minor getting a "huge break," the court also stated that it agreed that the minor's case "was appropriate for juvenile court." The court observed that the venue in which the minor's case was adjudicated in "no way detracts from the seriousness of the crime. It was very violent, very callous." The court did not indicate that it predetermined the DJJ commitment or that it was penalizing the minor for being in juvenile court, and its statement that it agreed the minor's case was appropriate for juvenile court belies the minor's speculative argument.

A minor does not show error on appeal simply by asserting that the juvenile court could have ordered a less restrictive placement. Rather, the minor must show that the court abused its discretion in its decision. ( In re Michael D ., supra , 188 Cal.App.3d at p. 1395.) Here, the minor has failed to make this showing. Accordingly, the court did not err in rejecting less restrictive placements.

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The judgment is affirmed.

/s/ _________
Butz, J.

We concur:

/s/ _________
Raye, P. J.

/s/ _________
Renner, J.