California Cases May 04, 2023: The People v. Nikolas A. (In re Nikolas A.)

Case Description

1

NOT TO BE PUBLISHED

Sonoma County Super. Ct. No. J-39891-01

Jackson, P. J.

Nikolas A. appeals from the juvenile court's disposition order entered after he admitted violating Penal Code section 287, subdivision (i) (oral copulation of an intoxicated person) and subdivision (c)(2)(C) (forcible oral copulation). Following a contested disposition hearing, Nikolas was committed to Sonoma County's secure youth treatment facility (SYTF) for a baseline term of three years and a maximum term of 10 years and was also ordered to register as a sex offender for 10 years. Nikolas argues (1) the juvenile court abused its discretion at the disposition hearing by considering uncharged misconduct that was not proven true by a preponderance of the evidence; (2) insufficient evidence supports the juvenile court's findings that there is a probable benefit to Nikolas from the secure commitment and that less restrictive alternatives are inappropriate; (3) Nikolas's precommitment

2

custody credits should apply against his three-year baseline term of confinement; and (4) Penal Code section 290.008, subdivision (a) does not authorize the juvenile court to require Nikolas to register as a sex offender because Nikolas was not committed to the Department of Corrections and Rehabilitation. We agree with Nikolas's last point and remand for the juvenile court to strike the portion of the dispositional order requiring Nikolas to register as a sex offender. We affirm the dispositional order in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

I. Petition and Plea

On June 10, 2021, the Sonoma County District Attorney filed a juvenile wardship petition (Welf. &Inst. Code, § 602, subd. (a)) alleging that Nikolas, at age 17, committed rape by use of drugs (Pen. Code, § 261, subd. (a)(3); count 1), oral copulation of a person incapacitated by drugs (Pen. Code, § 287, subd. (i); count 2), sodomy by anesthesia or a controlled substance (Pen. Code, § 286, subd. (i); count 3), sexual penetration by a foreign object (Pen. Code, § 289, subd. (e); count 4), forcible rape (Pen. Code, § 261, subd. (a)(2); count 5), forcible oral copulation with a person under age 14 (Pen. Code, § 287, subd. (c)(2)(C); count 6), sodomy by use of force (Pen. Code, § 286, subd. (c)(2)(A); count 7), and sexual penetration by a foreign object with a person over age 14 (Pen. Code, § 289, subd. (a)(1)(C); count 8).

3

On December 29, 2021, Nikolas admitted count 2 (oral copulation of a person intoxicated by drugs) and count 6 (forcible oral copulation with a person over age 14) as alleged in an orally amended petition in exchange for dismissal of the remaining counts with consideration pursuant to In re Jimmy P. (1996) 50 Cal.App.4th 1679 ( Jimmy P. ). At the time of the plea, the juvenile court advised Nikolas that because count 6 is an offense listed in section 707, subdivision (b), he was eligible for placement in an SYTF.

II. Disposition Report

Sonoma County's probation department's disposition report details the circumstances of the offenses based on police reports and interviews; summarizes Nikolas's social history, education, and substance use; and provides the probation department's treatment options and recommendations.

A. Sexual Assault

On March 20, 2021, the 16-year-old victim, Jane Doe, and her friend Jacqueline C. ran away from a children's home to meet with Nikolas and his friends Gustavo P. and Asher W. When they met, the group drank alcohol and smoked marijuana. Doe drank a significant amount and became drunk. The group eventually went to a hotel where Gustavo's brother rented them a room. At the hotel, the group, except for Jacqueline, continued to drink alcohol. Jacqueline, however, continued to smoke marijuana.

Nikolas became "touchy" with Doe. Nikolas and Doe cuddled and kissed on the bed. Further, Nikolas repeatedly grabbed Doe and picked her up. Although Doe previously told Jacqueline that she planned to" 'hook up' "

4

with Nikolas, when they arrived at the hotel Doe told Jacqueline that she had changed her mind. Jacqueline believed Doe seemed" 'scared and uncomfortable'" when Nikolas touched her.

Later that night, Jacqueline's younger sister, Eleni C., went to the hotel and found Jacqueline asleep on one of the beds. Eleni was sober and did not drink alcohol or smoke marijuana that night. She observed that Doe was drunk and Nikolas was" 'all over her.'" He put his hands in Doe's bra and pants and shoved Doe's head into his crotch. As Doe moved away from Nikolas, she told Eleni he was making her uncomfortable. Nikolas asked Doe to take a shower with him, and Doe said, "[M]aybe in 30 minutes," but at the same time, Doe looked at Eleni and shook her head in a manner that seemed to indicate that Doe did not want to take a shower.

Nikolas and Doe went to the room's balcony to continue drinking and smoking. When Doe returned, Eleni thought the victim seemed very drowsy and not "normal." Nikolas told Doe to drink more alcohol. Doe said she couldn't drink anymore, but Nikolas insisted and Doe drank more. Doe had multiple shots throughout the night and felt too drunk to make decisions, to balance, and to control her body movements.

Nikolas guided Doe to the bathroom and again suggested they take a shower together. Doe said," 'Yeah.'" She had difficulty standing, walking, and talking. Nikolas locked the bathroom door and began kissing Doe and removing her clothing. Doe described herself as feeling nearly" 'paralyzed.'" She could not stand or move on her own. Nikolas led her into the shower. Doe said no, but she could not yell or scream.

When they were in the shower, Nikolas positioned Doe on her knees and put his penis in her mouth. He then stood her up and put his finger and then his penis into her vagina. She said" 'no'" and" 'stop'" numerous times.

5

Nikolas put his finger and his penis in her anus. She continued to plead for him to stop. At one point, Nikolas said," 'You don't want this, do you?'" and then he guided Doe to the ground and" 'shoved'" his penis in her mouth. He grabbed her hair and made her orally copulate him. Doe nearly vomited a couple of times, and she felt like he was" 'pulling her hair out.' "

Nikolas caused Doe to crash into the bathroom walls and the glass shower doors. She fell forward between Nikolas's legs, and he masturbated and ejaculated on her back. Nikolas then guided Doe out of the shower and briefly orally copulated her before dressing her and guiding her out of the bathroom. Doe estimated the sexual assault lasted about an hour and a half.

While Doe and Nikolas were in the bathroom, Eleni heard" 'thudding'" and" 'banging'" as if someone were falling. Eleni knocked on the door and yelled to ask if Doe was okay. No one answered, but the" 'thuds'" continued. Eleni tried to open the door, but it was locked. Eleni estimated that minor and Doe were in the bathroom for one and a half to two hours.

When Nikolas came out of the bathroom, his shirt was off and his pants were unbuckled. Doe was stumbling, unable to stand, walk, or speak. She looked like a" rag doll,'" with matted, knotted hair. Doe fell onto the bed next to Eleni and Jacqueline. She was crying and breathing heavily. When Eleni asked her what happened, Doe whispered," 'He raped me. He raped me.'" She began crying uncontrollably, and cried," 'I can't move. I can't walk. Everything hurts. I'm bleeding. I'm bleeding.' "

Eleni contacted a friend to pick them up and to drive them back to the children's home. Nikolas was angry and upset that the girls were going to leave. He told them they were not going anywhere and said Doe was too drunk. He called them" 'bitches'" and accused them of using him and his friends for drugs and alcohol. He blocked their path as they were leaving the

6

room and grabbed Doe's arm. After Eleni told him to let go, he removed his hand.

Doe asked Eleni to call Doe's father. Eleni told Doe's father they were going back to the children's home. Doe tried to talk to her father on the phone but could not speak other than to say," 'He raped me.'" Doe continued crying on the way back to the children's home. She told Eleni," 'It hurts, it hurts. He put it in my ass.'" Doe also complained of throat pain and said she could not breathe and was choking because Nikolas forced her to" 'suck his dick.' "

Doe's father called 911 and then met the girls and law enforcement at the children's home. Police officers described Doe as "crying hysterically" and "in a state of crisis." Doe told her father:" 'He raped me.'" " 'He did everything.'" " 'I said no, and he kept going.'" " 'I still feel it inside of me.'" " 'I can feel it in my throat and in my ass.' "

A sexual assault response team (SART) examination showed Doe had significant tearing to her vagina and rectum and bruising on her perineum. She also had bruising and petechiae on her throat. Suspected semen was found on Doe's back, which was consistent with her initial statement to the responding officer. Doe could barely walk after the assault. She suffered pain going to the bathroom "in both places" and was prescribed medication for the pain. She vomited multiple times due to stress and returned to a hospital's emergency department two days after the assault.

Nikolas told Gustavo that he was supposed to get" oral'" in the shower, but Doe was too drunk so he picked her up and the shower ended after about 10 minutes. Nikolas told his father about the incident and said Doe "had only given him a blowjob." The day after the assault, Nikolas messaged Doe through a social media application, saying," 'I really liked

7

you,'" and," 'Idk why u left, U said u wanted to leave so if it's sum thing I did I'm truly sorry.'" ( Sic. )

A few days after the assault, during a pretext social media message exchange arranged by law enforcement, Doe told Nikolas she wanted to talk about what happened in the shower. Nikolas responded," Was the head to much or sum?'" ( Sic. ) Doe said she did not expect to do anything with him because they discussed not having sex that night. Nikolas said Doe initiated the contact, her hand" 'flew to his dick,'" and they were" 'making out'" in the shower. Nikolas said that he" 'fingered'" her and she tried to" 'give him head,'" but she couldn't sit up so they got out of the shower. He denied having intercourse with Doe but admitted he put his thumb in Doe's" 'ass.'" When Doe mentioned her vaginal and rectal pain, he again denied having sex with Doe. He said he only put his penis in Doe's mouth and that she "barely" orally copulated him.

B. Prior Misconduct

The disposition report included a section titled " PRIOR RECORD ," which listed two prior citations against Nikolas, neither of which resulted in a wardship petition. In October 2017, the Sonoma County Sheriff's Office cited Nikolas for a misdemeanor violation of Penal Code section 243.4, subdivision (a) (sexual battery) and requested that the district attorney file a petition. In February 2018, the district attorney denied the request to file a petition. On July 19, 2021, while Nikolas was detained in Sonoma County Juvenile Hall relating to the current petition, the Sonoma County Sheriff's Office additionally cited him for felony violations of Penal Code section 261, subdivision (a)(2) (rape by force), which allegedly occurred in October 2019, and requested that the district attorney file a petition. On July 21, 2021, the district attorney denied the request to file a petition. An attachment to the

8

disposition report states the petition requests relating to the 2017 and 2019 allegations were rejected due to insufficient evidence. The disposition report states that Nikolas had no history as a ward of the court and had not participated in any services as part of informal or formal probation.

In another section of the disposition report, titled " EDUCATION, " the probation officer reported that Nikolas graduated high school in June 2021. His high school discipline records include several suspensions, one of which was for sexual assault in November 2017. According to school records: "[O]n 'Tuesday, November 28, 2017, a student reported that she had been touched inappropriately in a sexual manner, on numerous occasions by Nikolas. She stated these advances were unwanted and had expressed that to Nikolas, however, Nikolas persisted in his advances, often forcefully. A second student also reported unwanted and inappropriate touching of a sexual nature by Nikolas. All of these occurrences were on school property (the library and basketball courts). During the investigation conducted by the Vice Principal, it was also revealed that Nikolas had texted female students requesting nude photographs in the past.'" Nikolas was suspended for five days and placed on a nine-week "Probationary Contract" related to sexual assault. In February and March 2018, Nikolas was suspended for one day as a result of two separate incidents of insubordination and possession of drug paraphernalia. In April 2019, he was suspended for five days, directed to attend counseling and drug education sessions, and placed on another nine-week "Probationary Contract" for possession of drug paraphernalia, selling refills for vaping pens, and joking about school shootings.

C. Statements by Nikolas and Nikolas's Parents

In an interview with the probation officer in advance of the disposition hearing, Nikolas said he recalled that Doe was" 'not drunk falling over' "

9

when they entered the bathroom and that she was" 'walking and talking'" and" 'giddy and smiling'" just before they went into the bathroom. He was unsure how much alcohol and marijuana Doe consumed throughout the day and night. Nikolas estimated that he had about 10 drinks. He said they were" 'making out'" in the bathroom before Doe orally copulated him, which she" 'did . . . on her own' ...." Nikolas said he and Doe communicated through social media applications prior to the date of the offenses and that they planned to" 'hook up.'" Nikolas thought they were going to have consensual sex, and he reported that" 'a lot that she claimed' about force, 'was not true.'" Nikolas said Doe was more animated and flirtatious than what was reported about the circumstances of the offenses in the disposition report. He believed he may have "misread" some social cues, and he wished" 'it didn't happen ....'" Nikolas said he did not intend to" 'hurt someone'" and he was" 'really down for fixing any problems.' "

Nikolas described his sexual history and development as normal. He explained that the 279 sexually explicit videos on his phone were" 'old'" and that he used them in the past while he masturbated. He estimated that he had had six or seven female sexual partners since his first sexual experience at age 15.

Nikolas reported that he first experimented with marijuana in middle school and with alcohol in high school. He preferred smoking marijuana to drinking alcohol. He estimated that by his junior year of high school he was smoking marijuana almost daily. He denied ever being hospitalized for drug or alcohol poisoning but admitted to suffering an alcohol-induced blackout on his 17th birthday.

10

Nikolas's mother and father both supported Nikolas's living at home while he rehabilitated. Mother reported that Nikolas told her that his sexual encounter with Doe was consensual. She described having a close, loving, and stable relationship with Nikolas, and she described him as sensitive, smart, and hardworking. Nikolas's father reported he was disappointed in Nikolas's poor decisions leading up to the offenses, but he supported his son.

D. Behavior in Detention

While detained in juvenile hall, Nikolas enrolled in classes at a local junior college. Nikolas did not engage in any inappropriate behavior at juvenile hall, and staff members described him as quiet, reserved and respectful. Due to "subtle bullying" and "veiled threats" toward Nikolas by other residents, Nikolas agreed to a protective custody program to isolate him from certain residents without affecting his educational pursuits, free time activities, or privileges.

E. Probation Recommendation

The probation department recommended that Nikolas be committed to the SYTF for a baseline term of three years and a maximum term of 10 years. It concluded that based on the serious nature of the offenses, the harm caused to the victim, and Nikolas's need for rehabilitative treatment for sexual offenders and for substance abuse, commitment to the SYTF offered Nikolas the extensive services needed for rehabilitation. The report noted that Nikolas's documented history of school discipline for sexual assault was relevant to both his treatment needs and his community safety concerns. It explained that the services available at the SYTF included sex offender treatment through a contract with the Sonoma County Department of Health Services, Behavioral Health Division (SCBH). Nikolas would be assessed using the Protective + Risk Observations For Eliminating Sexual Offense

11

Recidivism (PROFESOR), which is an assessment tool designed for adolescents between the ages of 12 and 25. The probation department concluded that the goals of rehabilitation and community safety would not be met with a less restrictive disposition than commitment to the SYTF. It also concluded that it was questionable whether Nikolas currently "has the moral aptitude / foundation to fully comprehend the sustained effort he will need to undertake to address his sexually offensive behaviors, [and] his sexual impulses ...." The probation department did not believe Nikolas was a viable candidate for outpatient services and also noted that treatment options were limited due to Nikolas's age.

III. Minor's Disposition Brief

In advance of the disposition hearing, Nikolas filed a disposition brief advocating for supervised probation at home, where he would live with his parents while attending junior college and working. Nikolas argued that the probation department's recommendation failed to specify why Nikolas's rehabilitative needs could not be addressed with a less restrictive disposition. He asserted that if supervised probation were ordered, he would be able to receive mental health services and participate in the Sex Offenders and Families in Effective Recovery (SAFER) program. Nikolas noted that he had no prior criminal history and argued that it would be a violation of due process for the juvenile court to consider the disposition report's reference to prior uncharged incidents.

12

IV. Disposition Hearing

At the disposition hearing, the juvenile court heard from the probation department supervisor, who stated that the department considered Nikolas's rehabilitation needs based on the gravity of the offenses, Nikolas's prior sexual misconduct at school, and his substance abuse history. The district attorney supported the probation department's recommendation. The district attorney argued that under the factors of section 875, subdivision (a)(3)(A), the juvenile court must consider the severity of the crimes and Nikolas's delinquency history, which includes Nikolas's school suspension for unwanted sexual advances. Further, the district attorney asserted that because Nikolas was then 18, he was no longer eligible for community-based programs geared to youth. Thus, if Nikolas entered community programs he would be with adult sex offenders rather than offenders of his own age and sophistication level. In contrast, the SYTF provides programs for Nikolas's age group.

Doe and her mother, who both provided written statements attached to the disposition report, addressed the juvenile court at the disposition hearing. Doe's father also spoke at the disposition hearing. They all recounted the trauma they experienced at the time of the offenses and thereafter.

Nikolas's counsel argued for Nikolas to be placed on probation. She stated that Nikolas has a supportive family, is currently taking college courses while in detention, and would be able to return to his job at a hardware store if he were released to supervised probation. Nikolas's counsel argued that neither the probation department nor the prosecutor provided sufficient evidence that a less restrictive disposition would be ineffective or inappropriate for Nikolas.

13

The district attorney responded that Nikolas should be placed in the SYTF because of the gravity of the offense and that because of his age, youth services are not available to him other than in the SYTF. The district attorney described Nikolas as being at a "critical point in his life and subjecting him to more criminally sophisticated adults is not appropriate."

The juvenile court rejected Nikolas's argument that the court was not permitted to consider Nikolas's past uncharged misconduct. It referenced the mandate in section 730, subdivision (d) to consider "any other relevant information presented" and the requirement in section 875, subdivision (a)(3) to consider "all relevant and material evidence" in making a disposition decision. The juvenile court found that Nikolas would benefit from the services available at the Sonoma County SYTF and that less restrictive alternatives were unsuitable.

Nikolas was committed to the SYTF for a baseline term of three years and a maximum term of 10 years. He was given credit for 241 days in custody. At a subsequent hearing to review the individualized rehabilitation plan, Nikolas's counsel asked the court to confirm that the 241 days of custody credits apply toward the three-year baseline term. Without identifying a specific statute, the juvenile court responded, "No. By statute, by law, it does not."

DISCUSSION

I. Consideration of uncharged misconduct at juvenile disposition hearing was not an abuse of discretion.

Nikolas argues that the juvenile court erred by considering instances of Nikolas's uncharged past misconduct that were not proven by a preponderance of the evidence. He relies on case authority regarding sentencing of adults, which holds that a sentencing court may consider conduct underlying an acquitted charge "so long as that conduct has been

14

proven by a preponderance of the evidence." ( United States v. Watts (1997) 519 U.S. 148, 157; People v. Towne (2008) 44 Cal.4th 63, 86.) Nikolas admits there is no authority directly applying the preponderance of the evidence standard to consideration of prior misconduct during a juvenile disposition hearing, but he argues the standard should apply "with equal vigor to juvenile matters." We disagree.

As the California Supreme Court recognizes, although the Evidence Code applies at the jurisdictional phase of a juvenile proceeding, "[l]ess exacting rules govern disposition. No statute expressly subjects this phase to the Evidence Code. In addition to other relevant evidence (e.g., [Welf. & Inst. Code,] §§ 656.2, subd. (a), 725.5), the court must consider the probation officer's report." ( In re Eddie M. (2003) 31 Cal.4th 480, 487; Welf. &Inst. Code, § 706 [at disposition, "[t]he court shall receive in evidence the social study of the minor made by the probation officer"].)

The juvenile court correctly found that statutory authority applicable to juvenile dispositions provides it with discretion to consider collateral information regarding Nikolas's prior alleged misconduct in determining an appropriate disposition. Section 730, subdivision (d), which concerns treatment for wards adjudicated for certain sex offenses, states: "In determining what type of treatment is appropriate, the court shall consider all of the following: the seriousness and circumstances of the offense, the vulnerability of the victim, the minor's criminal history and prior attempts at rehabilitation, the sophistication of the minor, the threat to public safety, the minor's likelihood of reoffending, and any other relevant information presented ." (Italics added.) Similarly, section 875, subdivision (a)(3) states that in determining whether a less restrictive alternative to the SYTF is unsuitable, "the [juvenile] court shall consider all relevant and material

15

evidence , including the recommendations of counsel, the probation department, and any other agency or individual designated by the court to advise on the appropriate disposition of the case." (Italics added.)

The juvenile court acknowledged that Nikolas had "no formal record with this Court prior to this incident" but that the district attorney declined to file petitions regarding an alleged battery on school grounds in 2017 and an alleged forceable rape charge in 2019. The juvenile court further stated: "[M]ore importantly, there was also a suspension in 2017 when [Nikolas] was suspended for a five-day period and placed on a probationary contract related to sexual assault. School records report that on November 28th, 2017, a female student reported that she had been touched inappropriately in a sexual manner on numerous occasions. She stated that these advances were unwanted, and she expressed that . . . to [Nikolas]; however, [Nikolas] persisted in his advance, often forcibly. A second student also reported unwanted and inappropriate touching of a sexual nature." After reciting this background, the juvenile court explained its decision to commit Nikolas to the SYTF as follows: "Most importantly, given his past and most recent behaviors, the Court believes that his participation in the Secured Youth Treatment Program for juvenile sex offenders would best be addressed here at a secured setting. In fact, the Court is well aware of the juvenile sex offender treatment program here at juvenile hall, and that program is being considered for a regional approach to other counties to send their youth here for treatment in the juvenile sex offender treatment program. [¶] Given the extreme seriousness of the forceable [ sic ] sex offenses before the Court, both those admitted and dismissed with consideration and substantiated by forensic sexual assault exam, the Court believes and feels that a less restrictive disposition other than a commitment to our Secured Youth

16

Treatment Program would not be appropriate for public safety reasons and that he could receive the proper treatment here in Juvenile Hall."

We find no abuse of discretion. The statutory authority requires the juvenile court to consider the probation report and "any other relevant information presented." (§§ 706, 730, subd. (d), 875, subd. (a)(3).) Nikolas's prior school suspension for unwanted sexual advances and his two prior referrals to the district attorney for sexual misconduct are "other relevant information" the juvenile court should consider in determining an appropriate disposition. (§§ 730, subd. (d), 875, subd. (a)(3).)

Nikolas's proposed rule is contrary to the goals of the juvenile justice system, which include considering the totality of the minor's circumstances to determine a disposition that can meet the minor's particular needs for rehabilitation. ( In re Michael V. (1986) 178 Cal.App.3d 159, 170 [statutes governing juvenile disposition hearings "reflect the strong public interest in imposing a proper disposition and make it essential that a juvenile court has broad access to relevant information concerning a minor found to have committed delinquent acts"].) Here, the probation officer prepared a thorough, detailed report to aid the juvenile court. The report made clear that Nikolas's prior citations did not result in any prior petitions but that Nikolas was suspended from school for making unwanted sexual advances. Further, it is well recognized that probation reports "prepared by an objective, expert government employee in the course of [his or] her duties" are "inherently reliable ...." ( In re Romeo C. (1995) 33 Cal.App.4th 1838, 1846.) The juvenile court correctly considered this information in making its disposition.

Nikolas relies on In re Gary B. (1998) 61 Cal.App.4th 844 ( Gary B. ), People v. Chi Ko Wong (1976) 18 Cal.3d 698 ( Chi Ko Wong ), disapproved on

17

other grounds in People v. Green (1980) 27 Cal.3d 1, 33-34, and In re Michael R. (1977) 73 Cal.App.3d 327 ( Michael R. ) in support of his position that an evidentiary prerequisite should apply before a juvenile court may consider a ward's prior misconduct in making a disposition determination. None of these cases is directly on point; nor are we persuaded that they support Nikolas's proposed rule. Gary B. involved a minor who admitted a robbery allegation in exchange for a dismissal of a firearm use enhancement. ( Gary B. , at p. 847.) Although the firearm use enhancement was dismissed, the minor admitted, as part of the factual basis for his plea, that he used a gun in the robbery. ( Ibid. ) The juvenile court considered the minor's use of the firearm in determining that the offense fell within section 707, subdivision (b), which potentially enlarged the time during which the minor was under the jurisdiction of the California Youth Authority (CYA). ( Gary B. , at pp. 846, 851, fn. 3.) The appellate court held that the juvenile court was permitted to base its section 707 determination on facts before it at the disposition hearing which are either admitted or which the court finds true by a preponderance of the evidence. ( Gary B. , at pp. 850-851.)

As the People argue, the issue in Gary B. was not the minor's overall disposition but, rather, whether his offense fell within one of the enumerated offenses listed in section 707, subdivision (b). The section 707, subdivision (b) determination impacted the length of the juvenile court's jurisdiction over the minor and involved a determination about the facts of the ward's offense. ( Gary B., supra , 61 Cal.App.4th at pp. 846, 851, fn. 3.) In contrast, there is no dispute that Nikolas's admitted offense of forcible oral copulation falls within section 707, subdivision (b). Gary B. does not address the evidentiary standard applicable to information regarding prior misconduct presented at disposition. As discussed ante , in making a disposition decision, the juvenile

18

court is statutorily required to consider a broad array of information available to the court, and neither statutory nor case authority applies a particular evidentiary burden to the information to be considered. Indeed, there are multiple examples of cases where juvenile courts consider information presented at disposition without any prerequisite evidentiary finding. (See, e.g., In re Carlos J. (2018) 22 Cal.App.5th 1, 7 ( Carlos J. ) [police contacts not resulting in petition and school discipline based on misconduct]; Jimmy P., supra , 50 Cal.App.4th at p. 1684 [dismissed allegations are properly considered at disposition]; Michael V., supra , 178 Cal.App.3d at p. 173 [illegally obtained evidence properly considered at disposition].)

Nor does Chi Ko Wong help Nikolas. There, the California Supreme Court reviewed a juvenile court's transfer decision finding the minor unfit for treatment as a juvenile. ( Chi Ko Wong, supra , 18 Cal.3d at pp. 708, 716.) The probation report prepared for the transfer hearing included information about the defendant's suspected involvement in prior gang homicides but said that defendant's" 'suspected criminal activity could [not] be sustained in Court ....'" ( Id. at p. 720.) The Supreme Court stated that evidence of police contacts may not be included in a probation report "without supporting information." It explained that an American Bar Association advisory committee found that such information can be misleading and damaging if presented as part of the section of the report dealing with past convictions, and that if arrest information is presented in a probation report,"' "a detailed effort should be undertaken to assure that the reader of the report cannot possibly mistake an arrest for a conviction." '" ( Id. at pp. 719, fn. 17, 720.) However, the Supreme Court found that the probation report at issue did not present the information concerning the defendant's suspected

19

involvement in other cases in a misleading manner and that the juvenile court properly considered such information in making its fitness determination. ( Id. at p. 721.) Here too the probation report clearly states that no petitions were filed based on Nikolas's two prior citations, and the juvenile court reiterated this fact at the disposition hearing. The juvenile court was not misled.

Nikolas cites Michael R., supra , 73 Cal.App.3d 327, for the position that prior police contacts not resulting in wardship petitions cannot be the basis for a commitment order. Michael R. is readily distinguishable. There, the appellate court reversed an order committing the minor to the CYA on the grounds that there was no evidence that the minor would benefit from the CYA commitment. ( Id. at p. 336.) The appellate court noted that the juvenile court considered the minor's prior police contacts and appeared to mistake at least one contact for a conviction. ( Id. at p. 335, fn. 5.) The court found that the minor's prior police contacts "cannot be used to uphold the [CYA] commitment on appeal." ( Ibid. ) Nikolas argues Michael R. "demonstrates the dangers of inclusion of bare arrest records in a dispositional report" and asserts that the juvenile court here erroneously "based its decision in substantial part on [Nikolas's] prior contacts, proceeding as though those contacts had actually been proven to be true ...." As discussed ante , the record demonstrates the opposite. Both the probation report and the juvenile court's statements at the disposition hearing indicate that Nikolas's prior citations did not result in wardship petitions. Further, the record indicates that the probation officer, the district attorney, and the juvenile court focused on Nikolas's five-day school suspension for sexual assault, which was a relevant consideration, rather than on his prior citations.

20

The record reflects that though the juvenile court, in making its disposition determination, considered Nikolas's past misconduct, it also properly considered all other relevant circumstances, including the seriousness of the admitted allegations as well as the dismissed allegations, the corroborating SART examination, the harm done to the victim, and the threat to public safety. ( Jimmy P., supra , 50 Cal.App.4th at p. 1684 ["in the case of a juvenile ward, statutory mandates and good sense require consideration of all relevant circumstances when deciding the level of restriction to be imposed, even those related to dismissed allegations"]; §§ 730, subd. (d), 875, subd. (a)(3).) We find no error.

II. SYTF Placement

Nikolas contends the trial court abused its discretion when it committed him to the SYTF because there is no substantial evidence that he would benefit from the SYTF commitment or that lesser restrictive alternatives were inappropriate. We review the juvenile court's placement decision for an abuse of discretion, and we review the court's findings for substantial evidence. ( Carlos J., supra , 22 Cal.App.5th at p. 3.) A trial court abuses its discretion when the factual findings critical to its decision are not supported by substantial evidence. ( Ibid. )

Section 875 provides the criteria that must be met before a juvenile ward may be committed to an SYTF. Subdivision (a)(3) requires the juvenile court to make "a finding on the record that a less restrictive, alternative disposition for the ward is unsuitable. In determining this, the court shall consider all relevant and material evidence, including the recommendations of counsel, the probation department, and any other agency or individual designated by the court to advise on the appropriate disposition of the case. The court shall additionally make its determination based on all of the

21

following criteria: [¶] (A) The severity of the offense or offenses, including the ward's role in the offense, the ward's behavior, and harm done to victims. [¶] (B) The ward's previous delinquent history, including the adequacy and success of previous attempts by the juvenile court to rehabilitate the ward. [¶] (C) Whether the programming, treatment, and education offered and provided in a secure youth treatment facility is appropriate to meet the treatment and security needs of the ward. [¶] (D) Whether the goals of rehabilitation and community safety can be met by assigning the ward to an alternative, less restrictive disposition that is available to the court. [¶] (E) The ward's age, developmental maturity, mental and emotional health, sexual orientation, gender identity and expression, and any disabilities or special needs affecting the safety or suitability of committing the ward to a term of confinement in a secure youth treatment facility."

A. Probable Benefit

Relying on Carlos J. , Nikolas argues the juvenile court's finding that Nikolas would receive a probable benefit from the SYTF commitment was not supported by substantial evidence. In Carlos J., supra , the probation department recommended that the minor, who admitted to assault with a firearm and a gang enhancement, be placed with the Division of Juvenile Facilities (DJF). (22 Cal.App.5th at p. 7.) The probation report stated that at the DJF, the minor's" 'educational, therapeutic, and emotional issues can be addressed in a secure facility'" ( id. at p. 10), and it also generally referenced" 'gang intervention services.'" ( Id. at p. 11.) The juvenile court focused on the seriousness of the offense and found" 'that the mental and physical condition and qualifications of this youth render it probable that the youth will benefit from the reformatory, discipline or other treatment provided by the [D]F].'" ( Id. at p. 9.) This court reversed the commitment because there

22

was no evidence in the record of programs at the DJF expected to be of benefit to the minor. ( Id. at p. 10.) We found that "the probation officer's unexplained and unsupported assertion of possible benefit is not evidence of 'reasonable, credible and of solid value' from which the juvenile court could make an informed assessment of the likelihood a DJF placement would be of benefit to appellant, in light of his specific needs." ( Ibid. ) We further explained "what we believe is and is not part of the initial showing required to support a DJF commitment. Considering the significance of a decision to send a minor to the DJF and the statutory mandates of sections 202 and 734, it is reasonable and appropriate to expect the probation department, in its report or testimony, to identify those programs at the DJF likely to be of benefit to the minor under consideration. Where a minor has particular needs, the probation department should also include brief descriptions of the relevant programs to address those needs." ( Id. at p. 12.)

Nikolas complains that here the probation department only provided a" 'laundry list'" of programs at the SYTF and did not identify specific programs likely to benefit him. We disagree with Nikolas's characterization of the record. The disposition report identified Nikolas's need for age-appropriate sex offender treatment services and substance abuse treatment. It further listed various services offered at the SYTF, including drug and alcohol services, mental health support, Aggression Replacement Training, and sex offender treatment, as well as transitional services such as intensive case management and career/technical education programs. The report explained: "Regarding services, including sex offender treatment, SYTF uses a contract through Sonoma County Behavior [ sic ] Health (SCBH). They will assess all youth for SYTF (despite their age) as the wards are committed for offenses that were committed as juveniles. One of the treatment assessments

23

used is the Protective Risk Observations For Eliminating Sexual Offense Recidivism (PROFESOR) which is geared toward adolescents between the ages of 12 to 25." Within 30 days of being placed in the SYTF, Nikolas would be assessed and an individualized rehabilitation plan that would be developed with input from Nikolas's family. Based on the assessment and the rehabilitation plan, the SYTF would identify specific programming to best meet Nikolas's rehabilitation needs. The probation officer also attached a case plan to the report, which included goals and action steps regarding the sex offender and substance abuse treatment at the SYTF. Substantial evidence supports the juvenile court's determination that Nikolas would benefit from a commitment to the SYTF.

B. Least Restrictive Alternative

Nikolas advocated to the juvenile court that he should be placed on probation while living at home with his parents and that he would be able to receive mental health services and participate in the SAFER program. The record does not specifically detail the services offered through the SAFER program; however, the district attorney argued that probation was not an appropriate alternative for Nikolas because he would need to be placed in sex offender treatment and substance abuse programs with "more criminally sophisticated adults." Nikolas's counsel did not contest the district attorney's statement or offer any evidence of community-based programs geared toward Nikolas's young adult age range.

Nikolas argues that because no prior juvenile wardship petitions were filed against him, the juvenile court had no evidence to assess whether less restrictive alternatives would be appropriate. However, as discussed ante , the record indicates that while the SYTF could provide age-appropriate services for Nikolas, such services were not available outside the SYTF.

24

Thus, the juvenile court determined that supervised probation was not an appropriate alternative. ( In re N.C. (2019) 39 Cal.App.5th 81, 89 [affirming commitment of 17-year-old to Division of Juvenile Justice based in part on concern that minor would" 'age out'" of other, less restrictive options prior to completion of programs].) Under section 875, the juvenile court was expressly required to consider "whether the goals of rehabilitation and community safety can be met by assigning the ward to an alternative, less restrictive disposition that is available to the court." (§ 875, subd. (a)(3)(D).) Given the seriousness of the offenses, and the fact that prior sexual offense complaints had been made against Nikolas in the past, the juvenile court had sufficient evidence to determine that committing Nikolas to the SYTF, as opposed to supervised probation at home, was necessary to meet the dual goals of rehabilitation and community safety. (§§ 202, subds. (a) &(b), 875, subd. (a)(3)(D); Carlos J., supra , 22 Cal.App.5th at p. 6 ["A juvenile court may properly consider 'a restrictive commitment as a means of protecting the public safety' "].)

III. Custody Credits

Nikolas argues that his 241 days of custody credits should apply against his baseline term of three years rather than against his 10-year maximum term of confinement. He relies on authority regarding commitments to the Division of Juvenile Justice (DJJ) holding that a minor's precommitment credits should be applied against a ward's actual maximum custodial term imposed under section 731, subdivision (b) rather than against the theoretical maximum calculated under section 726, subdivision (d). ( In re Ernesto L. (2022) 81 Cal.App.5th 31, 40-43 ( Ernesto L. ).) While we understand the parallel Nikolas seeks to draw between commitments to an SYTF under section 875 and commitments to the DJJ under section 731, the

25

applicable statutes differ. Further, as Nikolas concedes, section 875 was amended in 2022 to specifically state that "precommitment credits for time served must be applied against the maximum term of confinement as set pursuant to this subdivision." (§ 875, subd. (c)(1)(C), amended by Stats. 2022, ch. 58, § 41.) We find that the juvenile court did not err by applying Nikolas's custody credits against his maximum period of confinement.

In Ernesto L. , our colleagues in Division One of this court held that when a minor is committed to the DJJ, the juvenile court must apply any precommitment custody credits against the maximum custodial term under section 731 rather than against the maximum exposure term of confinement set under section 726. ( Ernesto L., supra , 81 Cal.App.5th at p. 34.) Its holding was contrary to the Fourth Appellate District decision in In re A.R. (2018) 24 Cal.App.5th 1076. Ernesto L. recognized that the reach of its holding was limited because of statutory amendments providing for the closure of the DJJ on June 30, 2023, but our colleagues published the decision because of their disagreement with the holding of A.R. ( Ernesto L. , at p. 34, fn. 2; § 736.5, subds. (b)-(c), (e).)

As explained in Ernesto L. , section 726 applies to minors removed from the physical custody of their parents or guardians due to a section 602 wardship petition, and section 731 further governs confinement of minors committed to the DJJ. ( Ernesto L., supra , 81 Cal.App.5th at pp. 34-35.) Section 726 states that an order removing a minor from a parent or

26

guardian's physical custody, "shall specify that the minor may not be held in physical confinement for a period in excess of the middle term of imprisonment which could be imposed upon an adult convicted of the offense . . . which brought . . . the minor under the jurisdiction of the juvenile court." (§ 726, subd. (d)(1).) Section 731 states that a minor committed to the DJJ "shall not be confined in excess of the term of confinement set by the committing court. The court shall set a maximum term based upon the facts and circumstances of the matter . . . that brought . . . the ward under the jurisdiction of the court and as deemed appropriate to achieve rehabilitation. The court shall not commit a ward to the [D]J] for a period that exceeds the middle term of imprisonment that could be imposed upon an adult convicted of the same offense." (§ 731, subd. (b).) Section 731 thus provides the juvenile court with discretion to impose a maximum term of confinement to the DJJ that is less than the middle term of imprisonment that could be imposed on an adult. ( Ernesto L. , at pp. 39, 41.) Ernesto L. found that custody credits must be applied against the section 731 term because that was the "actual maximum custodial term" imposed by the court. ( Ernesto L. , at p. 41.)

Nikolas argues because SYTF commitments have now replaced DJJ commitments, we should apply the reasoning of Ernesto L. and find that the baseline term set under section 875, subdivision (b) is the "functional 'actual'" maximum custodial time. While Nikolas's argument has some facial appeal, we are not persuaded that the reasoning of Ernesto L. should apply to confinements to an SYTF under section 875.

Section 875, subdivision (b) provides that the juvenile court "shall set a baseline term of confinement," which "shall represent the time in custody necessary to meet the developmental and treatment needs of the ward and to

27

prepare the ward for discharge to a period of probation supervision in the community." In addition, subdivision (c) requires that "the court shall additionally set a maximum term of confinement for the ward," which "shall represent the longest term of confinement in a facility that the ward may serve," and which "shall not exceed the middle term of imprisonment that can be imposed upon an adult convicted of the same offense ...." (§ 875, subd. (c)(1) &(2).) Subdivision (e) further explains how the SYTF baseline term is subject to change at six-month review hearings, when the court may order either that the ward remain in custody for the remainder of the baseline term, modify the term downward, or order that the ward be assigned to a less restrictive program. (§ 875, subd. (e)(1).) At the conclusion of the baseline confinement term, the court is required to hold a probation discharge hearing, at which the court reviews the ward's progress toward meeting his or her rehabilitation goals. The court "shall order that the ward be discharged to a period of probation supervision . . ., unless the court finds that the ward constitutes a substantial risk of imminent harm to others in the community if released," in which case the court may retain the ward in custody for an additional year. (§ 875, subd. (e)(3).)

The baseline term set by the juvenile court under section 875 is subject to change to address the ward's needs at each six-month review hearing and may be extended at the probation discharge hearing. (§ 875, subd. (e).) As such, we find that the baseline term is not equivalent to the maximum custodial term set under section 731 and addressed in Ernesto L. As Nikolas acknowledges, Ernesto L. addressed statutes governing DJJ commitments and not those governing SYTF commitments. We decline to extend Ernesto L. to baseline terms for SYTF commitments, which are governed by section 875 and may be adjusted downward as soon as six months from the

28

disposition order. The juvenile court properly set a maximum custody term against which Nikolas's custody credits apply.

IV. Sex Offender Registration

The juvenile court ordered Nikolas to register as a sex offender for a period of 10 years. Nikolas argues that under Penal Code section 290.008, the juvenile court may only require sex offender registration if a ward is committed to the DJJ and because Nikolas was committed to the SYTF, the juvenile court was not authorized to require that he register as a sex offender. Nikolas relies upon In re T.O. (2022) 84 Cal.App.5th 252, which is directly on point, and held that Penal Code section 290.008 does not apply to wards committed to county-administered programs, rather than to the DJJ. ( In re T.O. , at p. 265.) The People agree the juvenile court lacked authority to order Nikolas to register as a sex offender and that this portion of the order should be stricken. We agree with In re T.O. and find that the sex offender registration portion of the disposition order must be stricken.

DISPOSITION

We remand with instructions to strike the portion of the disposition order requiring Nikolas to register as a sex offender. In all other respects, the disposition order is affirmed.

29

WE CONCUR: Burns, J., Langhorne, J.