In re D.J.D.

Filed 12/10/07 In re D.J.D. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from an order of the Superior Court of Los Angeles County, Philip K. Mautino, Judge. Wardship order affirmed.

Anne E. Fragasso, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

The minor, D. J. D., appeals from the February 14, 2007 order declaring him to be a ward of the court (Welf. & Inst. Code,^[1] 602) and placing him in a suitable placement. The juvenile court sustained the allegation of a delinquency petition filed May 31, 2006, charging the minor with a lewd act upon a child under the age of 14. (Pen. Code, 288, subd. (a).) The juvenile court declared the offense a felony and set the minors maximum confinement time at eight years. We affirm.

II. BACKGROUND

We view the evidence in a light most favorable to the judgment. (Jackson v.Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v.Stainer (9th Cir. 1994) 31 F.3d 907, 908-909; see also In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404; In re Babak S. (1993) 18 Cal.App.4th 1077, 1088-1089 [standard of proof is the same in juvenile proceedings as that required in adult criminal trials]; In re Jose R. (1982) 137 Cal.App.3d 269, 275 [same].) On December 11, 2005, the 11-year-old victim, who is a young girl, spent the night at the minors house. The minor was 14 years old at the time. The victims two younger brothers and another cousin were also present. The minors mother and her boyfriend were in the home. The children stayed up late playing a video game. The minor asked the victim to come to his room. Once there, the minor grabbed the victim and pushed her onto the bed. The minor pulled the victims sweat pants and underwear down. The minor pulled his pants down. The minor held the victim down with one hand on her back. The minor attempted to place his penis in the victims rectum. The victim felt only the tip of the minors penis against her rectum. The victim told the minor to stop. It hurt the victim when the minors tip went into her rectum. However, the victim did not yell because she did not want to alert anyone. The victims brother entered the room to ask about a video game. The victims brother saw that her pants and underwear were pulled down. The victims brother saw that the minor was unclothed. The minor jumped back. The victim saw white stuff coming from the minors penis. The minor asked for some tissue. The minor said, I finally did it. The victim left the room. The victim later told her brother not to tell anyone. When asked why she did not want anybody else to learn about the sexual assault, the victim testified, Because I didnt want to get my mom upset . . . . Eventually, the victims brother told his mother about the sexual assault. It was only then the victim told others about the incident involving the minor. The victim did not tell her mother what had occurred until after her brother had told the minors mother.

III. DISCUSSION

A. The Minors Objections to Evidence Admitted at the Disposition Hearing

The minor argues that the trial court improperly admitted victim impact evidence at the disposition hearing. The evidence involved a letter written by the victim to the minor. Further, there was testimony of the victims mother regarding the sexual assault impact upon the family. The minor further argues that the admission of this evidence resulted in his suitable placement rather than a return to his mothers home with professional counseling as recommended by the probation officer and Dr. Sara Arroyo, a forensic psychologist.

B. Factual and Procedural Background

Prior to the testimony of the victims mother at the disposition hearing, defense counsel objected to the admissibility of two letters the prosecutor sought to have considered by the juvenile court. One of the letters was written by the victim to the minor and his mother. The other letter was written by the victims mother and her two minor children. Defense counsel stated: The defense would object for the record. The function of the delinquency system is to rehabilitate the minor and protect society. I understand that wed like to take the victims into account, generally, I just dont see the relevance as to the minors rehabilitation or protection of society. I think its already been established at the trial that the minor committed the offense in question. So objection submitted. The prosecutor responded, Just based on the code, this is a sex case, the victims absolutely have a right to present impact letters pursuant to the Welfare and Institutions Code, they do. Thereafter, the prosecutor sought to introduce the letter written by the victim. The victims letter was admitted as Peoples exhibit No. 2. Only one of the two letters was entered into evidencePeoples exhibit No. 2. The victims letter explained that the minor had ruined her life.

Two probation reports were prepared. According to the first probation report filed July 27, 2006, there was animosity between the minors and the victims mothers. The first probation report states: The minors mother states that she and the mother of the victim had a falling out. All of a sudden this comes up. The victim and her brother have begged to stay with the minors mother and not go home to their mother. The victims mother is bitter over the breakup with her ex-husband and cant seem to get past it. The victim and her brother had been involved with childrens services due to starvation and child abuse. The mother further states that the minor gets along well with all children. Children like to play with him. There have never been any problems. The first probation officers report recommended that the minor be placed home on probation with specialized sex offender and family counseling.

The second probation officers report, prepared after the adjudication hearing and filed January 8, 2007, began with a recommendation that the minor remain at home. The report relates: The mother reports no problems with the minor. He attends school and obeys her. Both she and the minor are willing to do whatever is necessary to comply with the courts orders.

The victims mother testified that the victim would not talk about the incident. After the incident, the victim had allowed her younger brothers to become more physically aggressive with her. The victim was to begin individual and group counseling through the Department of Children and Family Services. The victims mother stated that the incident made her question her own parenting skills. The victims mother testified that her son was now acting out, by becoming angry, aggressive, and physically and verbally abusive toward other family members. She was aware of other relatives that subsequently allowed their young daughters to be at the minors home. The victims recovery would involve a long process. In part, this was because the victim was in denial.

The victims mother was asked about contact with minors mother: Q How many times have you had contact with the minors mother? [] A I have never personally called her. I received a message from her on my birthday of 2006, that I took as a threat, because that was the day that children services had gone to her house and she left a voice mail on the phone. [] Q What did she say? [] A She said this was bullshit that children services had just left the house. And that I made some accusation that [the minor] had done something to my daughter and there had better be some truth to it, because if there wasnt, then there was going to be hell and high water to pay. It was going to go through my whole family and all my dirty laundry was going to come out to air. This voicemail was received on January 21, 2006, before the adjudication hearing. The minors mother also sent an e-mail on March 10, 2006, before the adjudication hearing which stated, You are the last person I want to hear talking about God, take me off your fucking email list.

The victims mother also testified concerning a conversation with an unidentified person, I also know from hearsay that shortly after the incident . . . another young female cousin was at the house alone with [the minor] and they were watching 40 Year Old Virgin. The hearsay information came from a friend who was present when the minor was watching the film with a cousin named Margaret. The victims mother also testified that the minor has access to other young girls who are family members.

Dr. Arroyo testified that she had evaluated the minor, reviewed the police report, and conducted some testing. Dr. Arroyo recommended that the minor be placed at home on probation and participate in a counseling program. Dr. Arroyo based her recommendation on the fact that the minor did not have any prior criminal history and was active in school. According to Dr. Arroyo, [The minor] was an intact youth that allegedly committed a one time or has allegedly committed this incident or this offense, so I felt that there was promise in him for participating in a program on an outpatient basis. The fact that the minor was convicted of the offense did not change Dr. Arroyos opinion.

Dr. Arroyos written report was received as evidence. Dr. Arroyo stated that the minors psychosexual history was within the norm and he denied ever having sexual intercourse. The minor: was of low average intelligence; read at eighth grade level; and performed with fourth grade arithmetic skills. There was no evidence the minor possessed any major psychopathology nor were there any symptoms of psychosis or thought disorder. In Dr. Arroyos view, the minor suffered from an adjustment disorder with a depressed and anxious mood. Also, the minor had a mathematics disorder but she ruled out any other learning disabilities. Dr. Arroyo recommended the minor participate in sex offender, anger management, and assertiveness training programs. Finally, Dr. Arroyo recommended that the minors mother attend a parenting class.

The minors mother testified that she felt her son would best be placed in her home. She testified, I feel well be able to get through this together if hes at home. The minors and the victims mothers had been best friends. However, they no longer had any contact with one another. They had a falling out over the victims mothers lifestyle prior to this incident. The minors mother acknowledged that following this incident, another female cousin had been left with the minor and other male cousins without adult supervision.

Deputy Probation Officer Stephanie DeFiore testified that following her initial review of the case, she had made a recommendation that the minor be placed home on probation. However, subsequent to the submission of her report to the juvenile court, Ms. DeFiore had the opportunity to review the state mandated rape report with physical findings. Ms. DeFiore learned from that report that the victim stood 4 feet 11 inches and weighed only 90 pounds. Prior to reviewing the report, Ms. DeFiore had been unaware that the minor held the victim down. But when cross-examined, Ms. DeFiore admitted she wrote in her original report: When the eleven year old female victim entered the minors bedroom [he] pushed her face down on his bed, pulled her panties down to her knees and held her down on the bed against her will. Ms. DeFiore spoke to the minors mother. The minors mother was angry. The minors mother told Ms. DeFiore that he was being falsely charged. Based upon the additional information regarding the victim impact evidence and the force involved in the incident, Ms. DeFiore reconsidered her evaluation and recommended a placement for the minor.

C. Admissibility of the Victims Mother Testimony

The minor challenges the admissibility of testimony of the victims mother. The minor argues that the testimony concerning the impact of the minors conduct on the victim was inadmissible. The minor further argues, Even if victim impact evidence is admissible, the testimony of the victims mother should have been disallowed because only the victim can present a victim impact statement [to] the court under section 656.2[.] Even if much of her testimony was admissible, the minor contends other aspects of what the victims mother testified to was inadmissible. We disagree.

Section 656.2 provides in pertinent part: (a) Notwithstanding any other provision of law, a victim shall have the right to present a victim impact statement in all juvenile court hearings concerning petitions filed pursuant to Section 602 alleging the commission of any criminal offense. In any case in which a minor is alleged to have committed a criminal offense, the probation officer shall inform the victim of the rights of victims to submit a victim impact statement. If the victim exercises the right to submit a victim impact statement to the probation officer, the probation officer shall include the statement in his or her social study submitted to the court . . . .  The probation officer also shall advise those persons as to the time and place of the disposition hearing to be conducted . . . and any other judicial proceeding concerning the case. [] . . . [] (e) For purposes of this section, victim means the victim, the parent or guardian of the victim if the victim is a minor . . . . Also, the juvenile court is required to consider relevant and material testimony including that from the victim and a parent. ( 706; Cal. Rules of Court, rule 5.785; see In re Romeo C. (1995) 33 Cal.App.4th 1838, 1843; In re Michael V. (1986) 178 Cal.App.3d 159, 170.)

We review these issues for an abuse of discretion. (People v. Hoyos (2007) 41 Cal.4th 872, 898; People v. Guerra (2006) 37 Cal.4th 1067, 1113.) Much of the challenged testimony related to the effect of the minors conduct on the victim. Moreover, section 656.2, subdivision (e) allows the parent to testify regarding the impact of a crime on a victim who is a minor. As to those matters which were not in the nature of victim impact testimony, no abuse of discretion occurred. The initial probation report relates that the minors mother was inferring that a falling out with the victims mother had led to the present allegations. The juvenile court did not abuse its discretion in permitting the victims mother to rebut those allegations. Further, the victims mothers testimony described the lack of structure in the minors home.

D. Propriety of the Disposition

We review a juvenile courts determination regarding the proper disposition for a child declared a ward of the court pursuant to section 602 for abuse of discretion. (In re Tyrone O. (1989) 209 Cal.App.3d 145, 151; In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.) The juvenile court considers the minors age, the circumstances and gravity of the offense, any previous delinquent history, and other relevant and material evidence in making a determination as to the proper disposition. ( 725.5; In re John F. (1983) 150 Cal.App.3d 182, 184.) In the case of In re Teofilio A. (1989) 210 Cal.App.3d 571, 577, our colleagues in the Court of Appeal for the Fifth Appellate District held: [L]ess restrictive placements do not actually have to have been tried [before more restrictive placements are ordered]. Rather there must be a probable benefit to the minor, and evidence supporting a determination that less restrictive alternatives are ineffective or inappropriate. (See In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.)

In ordering the minors removal from his mothers home and suitable placement, the juvenile court noted: I find it contrary to the welfare of the minor to remain in the home of the parent or guardian, temporary placement or care is vested with the probation department. Reasonable efforts have been made to prevent or eliminate the need for removal. The juvenile court imposed several probation conditions including that the minor participate in counseling and that his parents complete a parenting education program. Thereafter, the juvenile court addressed the minor: Now, we all have problems, that is the human condition. . . . You know, this is a problem that you have, it was inappropriate behavior. [] Now what you do if you are a man, you go to work on your problems instead of sitting there going, I got this problem. I got this problem. []  . . . [] Rancho San Antonio, it aint a jail, you are not locked up. It is a hospital setting. Not only is it a hospital setting, but I can show the Court of Appeals of the State of California and the decision for about 20 or 30 pages long, said it was the finest institution in the United States, the program they have is the very best. I want the very best for you. And thats what we are going to do. [] So I want you to work on your problem, I want you to get beyond your problem and move on. The juvenile court looked to the circumstances of the offense as well as the welfare of the minor in issuing the suitable placement order.

IV. DISPOSITION

The wardship order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

MOSK, J.

KRIEGLER, J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.