In re H.F.






Filed 12/19/11 In re H.F. CA2/8





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re H.F., a Person Coming Under the Juvenile Court Law.	B229465 (Los Angeles County Super. Ct. No. FJ 45724)
THE PEOPLE, Plaintiff and Respondent, v. H.F., Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, John C. Lawson II, Judge. Affirmed.
Laini Millar Melnick, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
* * * * * *
Minor H.F., age 14, appeals from the juvenile court’s dispositional order committing him to the Department of Juvenile Justice (DJJ) after he admitted one count of lewd act upon a child and one count of misdemeanor child molestation. We affirm.

factual and procedural background

Appellant has a history of sexual abuse by his father.^[1] Based on a petition filed under Welfare and Institutions Code section 300, appellant was declared a dependent of the court on September 25, 2009. Appellant subsequently sexually abused his younger brother. On December 14, 2009, appellant was ordered to suitable placement at Hathaway Sycamores group home due to a sustained petition alleging he committed forcible sodomy (Pen. Code, § 286, subd. (c)(2)).^[2]
While at Hathaway Sycamores, appellant attended an off-site school. On May 10, 2010, appellant followed an eight-year-old schoolmate into a school restroom and locked the door. Appellant covered the victim’s mouth and threatened to hurt or kill him if he said anything. Appellant proceeded to orally copulate the victim.
A second incident with the same victim occurred on May 12, 2010. Appellant told school staff that the victim needed to go to the restroom and that he would escort the victim to the facility. Inside the restroom, appellant threatened to kill the victim if he did not do as appellant instructed. Appellant then forced the victim to orally copulate him.
Based on the incidents at appellant’s school, on June 21, 2010, the People filed a petition under Welfare and Institutions Code section 602 alleging appellant committed two counts of forcible lewd act upon a child (Pen. Code, § 288, subd. (b)(1)). On September 28, 2010, the court amended the petition to add one count of lewd act upon a child (Pen. Code, § 288, subd. (a)) and one count of misdemeanor child molestation (Pen. Code, § 647.6). Appellant admitted the truth of these new counts, and the court dismissed the two counts of forcible lewd act upon a child.
The court held a disposition hearing on October 4, 2010, and a continued disposition hearing on November 22, 2010. The court ordered that appellant remain a ward of the court and terminated its previous order of placement at Hathaway Sycamores. Instead, the court ordered that appellant be committed to the DJJ and determined that the maximum period of physical confinement was 10 years four months. The court also ordered appellant to register as a sex offender.^[3]
Appellant filed a timely notice of appeal from the disposition order on December 8, 2010.

discussion

1. The Juvenile Court’s Advisement Regarding the Sex Offender Registration Requirement
A trial court is required to advise a defendant of the “direct consequences” of the defendant’s plea or admission before accepting the plea or admission. (People v. Barella (1999) 20 Cal.4th 261, 266.) The court’s duty to advise a defendant of the direct consequences of his plea or admission includes the duty to advise of the sex offender registration requirement when the defendant is convicted of a statutorily enumerated offense. (In re Birch (1973) 10 Cal.3d 314, 321.) Without this advisement, the defendant’s plea or admission cannot be regarded as having been knowingly and intelligently made. (Id. at p. 322.) The court must advise not only of the registration requirement, but that the requirement will be for the duration of the defendant’s life. (People v. Zaidi (2007) 147 Cal.App.4th 1470, 1481.)
Any claim that the court failed to advise of the registration requirement is waived absent a timely objection at or before sentencing. (People v. Walker (1991) 54 Cal.3d 1013, 1022-1023; People v. McClellan (1993) 6 Cal.4th 367, 377.) Furthermore, to require reversal, any error must be prejudicial, i.e., appellant must demonstrate it is reasonably probable he would not have entered his admission had he been advised of the lifetime registration requirement. (Ibid.)
Appellant argues that the juvenile court failed to advise him the sex offender registration requirement is a lifetime requirement, and as a result, we should reverse and remand the case with directions to permit appellant to withdraw his admission, should he choose to do so when advised of the lifetime requirement. We disagree.
Preliminarily, we note that appellant has forfeited the issue on appeal. The record reflects that appellant was aware of the lifetime nature of the registration requirement by the time of his disposition hearing, and he did not then raise the pre-admission failure to advise. At the adjudication hearing on September 28, the court advised appellant, “If you do go to D.J.J. or C.Y.A., youthful prison, if you do get sent there because of these charges you will have to register as a sex offender, another consequence of your plea today. Do you understand that‌” Appellant responded in the affirmative and went on to admit the allegations against him. At the disposition hearing on October 4, defense counsel argued against commitment to the DJJ because it would mean appellant “would be required to register as a sex offender for the rest of his life.” Defense counsel further argued that “at some point in his life, [appellant] is not going to be able to comply, he is going to overlook [registration], and he is going to end up in state prison. That starts in 16 months, and that would be a revolving door for him for the rest of his life.” Later in the hearing, responding to argument from defense counsel, the court stated, “Again, and I understand your concerns about the lifetime registration requirement, it would be, I agree, it’s devastating at such a young age, but I’m balancing that against the public safety.” The purpose of the waiver doctrine is to encourage defendants to bring errors to the attention of the trial court so that they may be corrected or avoided and a fair disposition may occur. (People v. Walker, supra, 54 Cal.3d at p. 1023; id. at p. 1030 [“whenever possible, any error in taking the plea should be brought to the attention of the court at sentencing so that it can be addressed expeditiously”]). By failing to interpose an objection at his disposition hearing to the court’s pre-admission advisement, when he was indisputably aware of the claimed error, appellant forfeited the issue. (People v. McClellan, supra, 6 Cal.4th at pp. 377-378 [failure to advise of registration requirement waived when record demonstrated defense counsel was aware of the registration requirement prior to the sentencing hearing and could have raised an objection at the sentencing].)
But even if appellant had preserved the issue for appeal, we would nonetheless find any error was not prejudicial. Appellant never asserts that had he been properly advised, he would not have admitted the allegations. His only attempt to demonstrate prejudice is to say that defense counsel argued against commitment to the DJJ at his disposition hearing precisely because of the registration requirement. This circumstance actually argues against prejudice. As described above, defense counsel’s argument was focused particularly on the lifetime nature of the registration requirement. The fact that appellant did not move at the hearing to withdraw his admission is evidence that knowledge of the lifetime consequences did not alter appellant’s decision to enter an admission.
2. The Lack of an Advisement Regarding Residency Restrictions
While a court is required to advise a defendant of the “direct consequences” of his plea or admission, the duty to advise does not extend to “‘secondary, indirect or collateral consequences’” of a plea or admission. (People v. Arnold (2004) 33 Cal.4th 294, 309.) “A collateral consequence is one which does not ‘inexorably follow’ from a conviction of the offense involved in the plea.” (Ibid.) Appellant argues that the lifetime residency restrictions for sex offenders under Jessica’s Law^[4] are a direct (and not merely collateral) consequence of his admission. As such, appellant argues, the juvenile court’s failure to advise of the residency restrictions also mandates reversal and remand so that he may have the option of withdrawing his admission. We disagree for the same reasons we disagree with appellant’s arguments in part 1.
First, appellant has forfeited the issue on appeal by failing to raise it in the lower court. (People v. Walker, supra, 54 Cal.3d at p. 1023.) Second, assuming for the sake of argument that the residency restrictions are a direct consequence of his admission, any asserted error was not prejudicial. (People v. McClellan, supra, 6 Cal.4th at pp. 377-378.) Appellant does not attempt to argue or establish prejudice in any manner. He makes no claim that he would not have admitted the allegations of the petition, had he known of the residency restrictions. Moreover, we discern nothing in the record to indicate prejudice. The court’s nonadvisement of residency restrictions does not compel reversal.
3. The Imposition of the Residency Restrictions Without a Jury Trial
Appellant argues that the residency restrictions constitute “severe punishment,” which triggers a due process and equal protection right to a jury trial. He asserts that, because he had no right to a jury trial, the residency restrictions should not apply to him. We disagree.
Preliminarily, appellant has again forfeited the issue by failing to raise it in the juvenile court. (People v. Rudd (1998) 63 Cal.App.4th 620, 628 [“The California Supreme Court has repeatedly held that constitutional objections must be interposed before the trial judge in order to preserve such contentions for appeal”].) Not only did appellant not request a jury trial, but he opted to admit the allegations against him rather than proceed with a contested jurisdictional hearing.
Appellant contends that he has not forfeited the issue because this case falls under the “unauthorized sentence” exception to the waiver rule. “[T]he ‘unauthorized sentence’ concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal. . . . [¶] [A] sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any circumstance in the particular case. Appellate courts are willing to intervene in the first instance because such error is ‘clear and correctable’ independent of any factual issues presented by the record at sentencing. . . . [L]egal error resulting in an unauthorized sentence commonly occurs where the court violates mandatory provisions governing the length of confinement.” (People v. Scott (1994) 9 Cal.4th 331, 354, citations omitted.) Assuming for the moment that there was error, this is not the type of sentencing error that is clear and easily correctable on appeal, like the imposition of a prison term in excess of mandatory statutory provisions. This situation demonstrates the soundness of the waiver rule in that, if it was error to deny appellant a jury trial, the situation could only be corrected, if appropriate, in the juvenile court. This case does not fall under the exception to the waiver rule for unauthorized sentences.
Even had the issue not been forfeited, there was no error in imposing the residency restrictions without a jury trial.^[5] The United States and California Supreme Courts have spoken on the issue of jury trials in juvenile cases, and these precedents compel the conclusion that no jury trial was required. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In McKeiver v. Pennsylvania (1971) 403 U.S. 528, 545 (McKeiver), the United States Supreme Court held that the Constitution does not require a jury trial in juvenile delinquency cases as opposed to criminal proceedings for adults. In People v. Nguyen (2009) 46 Cal.4th 1007, 1019 (Nguyen), the California Supreme Court recognized that, in McKeiver, “the court has concluded that the Constitution does not afford the right to a jury trial in juvenile proceedings.” (See also People v. Superior Court (Carl W.) (1975) 15 Cal.3d 271, 274 [“[N]either the state nor the federal Constitution guarantees a jury trial in a juvenile proceeding”].)
“The court’s decision in McKeiver not to find a constitutional jury trial right in juvenile proceedings reflected its concern that the introduction of juries in that context would interfere too greatly with the effort to deal with youthful offenders by procedures less formal and adversarial, and more protective and rehabilitative ‑‑ at least to a degree ‑‑ than those applicable to adult defendants. [Citation.] But the McKeiver majority made clear that the absence of a right to trial by jury did not appreciably undermine the accuracy of the factfinding function in juvenile cases.” (Nguyen, supra, 46 Cal.4th at p. 1023.) “Implicit in the high court’s juvenile justice decisions is the premise that this particular safeguard is not constitutionally essential to a fair and reliable adjudication in a juvenile case.” (Id. at p. 1026.)
As one court of appeal expressed it, “in light of nearly 80 years of precedent . . . only the California Supreme Court can now reconsider the question whether the California Constitution confers a right to a jury trial in juvenile court proceedings.” (People v. Smith (2003) 110 Cal.App.4th 1072, 1079, fn. 8.) The court is posed to do just that and has granted review on whether the imposition of the residency restrictions on a minor without a jury trial violates principles of due process and equal protection. (See In re J.L., supra, 190 Cal.App.4th 1394.) Given existing precedent, however, appellant’s argument fails.
We also find that our Supreme Court appears to have rejected the key premise of appellant’s argument that the residency restrictions constitute punishment. In In re E.J. (2010) 47 Cal.4th 1258, the court rejected retroactive and ex post facto challenges to the residency restrictions brought by parolees who were convicted before the restrictions were enacted but paroled thereafter. In the course of doing so, the court stated: “Although they fall under the new restrictions by virtue of their status as registered sex offenders who have been released on parole, they are not being ‘additionally punished’ for commission of the original sex offenses that gave rise to that status. Rather, petitioners are being subjected to new restrictions on where they may reside while on their current parole ‑‑ restrictions clearly intended to operate and protect the public in the present, not to serve as additional punishment for past crimes.” (Id. at p. 1278.)
In sum, appellant has forfeited his challenge to the residency restrictions, and even if he had not, we would find no error.
4. The Juvenile Court’s Commitment of Appellant to the DJJ
We review the juvenile court’s decision to commit appellant to the DJJ for abuse of discretion. (In re Carl N. (2008) 160 Cal.App.4th 423, 431-432.) An abuse of discretion occurs when the juvenile court “‘exceeds the bounds of reason, all of the circumstances being considered.’” (Id. at p. 432.) We indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its factual findings when they are supported by substantial evidence. (Ibid.) “Although the DJJ is normally a placement of last resort, there is no absolute rule that a DJJ commitment cannot be ordered unless less restrictive placements have been attempted. [Citations.] A DJJ commitment is not an abuse of discretion where the evidence demonstrates a probable benefit to the minor from the commitment and less restrictive alternatives would be ineffective or inappropriate.” (In re M.S. (2009) 174 Cal.App.4th 1241, 1250.)
Appellant argues that the juvenile court abused its discretion in committing him to the DJJ rather than the less restrictive alternative available at the Hathaway Sycamores group home. He asserts that the record does not support a finding that the less restrictive alternative would be ineffective or inappropriate. We do not agree.
The record discloses that the juvenile court engaged in a thoughtful and reasoned assessment of appellant’s case. At the disposition hearing on October 4, the court expounded at length about various concerns it had with appellant’s case and the options available. Among many other things, the court stated as follows:
“Among the psychological issues is attention deficit disorder. Those combined factors and the unfortunate past behavior of his father clearly has gotten this young man to where he is at the point, and now he is here.
“The court is quite familiar with this minor, the fact he looks like he is 12 or 13, and the court is quite familiar with his immaturity, his speaking out, his talking at inappropriate times, his not always having full grasp of a situation. The court is also quite familiar with how intelligent sounding and how truly intelligent this young man is. So there is a whole list of issues concerning this minor. [¶] . . . [¶]
“It’s pretty clear that an open placement is unacceptable. That is not going to happen. And so the question is: One, is it a secure setting for both the minor as well as others, and will he get appropriate treatment‌ And by that I mean treatment not only for inappropriate sexual behavior but also with the attention deficit [dis]order, the learning disabilities issue, because all those factors work together in conjunction with this young man’s behavior . . . . [¶] . . . [¶]
“Next option, level 14, one is it secure and will it have the appropriate treatment to deal with all the issues this young man has that must be dealt with‌ So those are the things now that the court is well aware the [DJJ] and its program there, the court has seen that program, that the type of counseling and one to one, that would be appropriate there, and so the court needs no convincing in terms of the sexual treatment, the inappropriate sexual behavior treatment program that they have there and the type of assessments that they do. The court clearly thinks that they would have the appropriate assessments.
“I guess the only thing that may cause the court some hesitation is, have we used all the least restrictive alternatives at this point before the court does indeed need to send him to the [DJJ] or is there no other program that is a less restrictive alternative other than sending him to the [DJJ].
“I have made [myself] clear as to the issues. I am looking at other alternatives, but is it going to meet the objectives that need to be met with this young man. Are they going to be on the same level or close to the program that is what the [DJJ] has to offer‌ . . .”
Given that the court wanted to look carefully at all options, including a level 14 residential treatment program such as Hathaway Sycamores, the court ordered an evaluation regarding whether a level 14 facility would accept appellant and whether it would have treatment programs for both sexual offender counseling and appellant’s learning disability issues. The court continued the disposition hearing to November 22 for this purpose.
The evaluation of appellant’s level 14 options concluded that Hathaway Sycamores would accept appellant back with the change that appellant would attend school onsite and not be transported offsite for school. It was also determined that Hathaway Sycamores did not have a sex offender treatment program, though the facility indicated it could address those issues in individual therapy. The court expressed the concern that the individual therapy at Hathaway Sycamores would be insufficient for appellant, and recognized that the DJJ had a sex offender treatment program requiring both group and individual counseling weekly. The court also “ha[d] some real concerns about the minor going back to Hathaway Sycamores,” because while the incident took place offsite, “Hathaway Sycamores is the same location where this incident germinated.” It noted “that the conduct in the new matter was one of being secretive, one of being away from where the authorities would be, taking place in the bathroom when authorities may not do bathroom checks.” It further noted that appellant had demonstrated behavior that was “learned or coached by [his father], or somehow they were placed in this young man’s brain where it appears to be hard for him to shake or show controls over, and requires extensive and long term counseling.” Ultimately, “[a]fter reviewing the treatment possibilities at Hathaway Sycamores as well as looking at the treatment possibilities at the [DJJ], in the better part of concern for the safety of the minor, the safety of the other individuals, and for the extensiveness for which the treatment appears to be taking place at the [DJJ,] . . . for the rehabilitation of the minor,” the court ordered appellant to the DJJ.
We cannot say that the court’s decision was an abuse of discretion. There was a probable benefit to appellant from the DJJ’s extensive sex offender treatment program, given his history of both suffering and inflicting sexual abuse. Moreover, the evidence supported the determination that placement at Hathaway Sycamores would be ineffective or inappropriate because of its lack of a specialized sex offenders program and the fact that appellant committed the most recent offense, now his second, while under that facility’s supervision and treatment. We decline to reverse the juvenile court’s decision.

DISPOSITION

The judgment is affirmed.


FLIER, J.
WE CONCUR:


BIGELOW, P. J. RUBIN, J.

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