In re Ian S.

Filed 9/18/07 In re Ian S. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Raymond P. Van Stockum, Judge. Affirmed.

Jamie L. Popper, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Lise Jacobson and Robin Derman, Deputy Attorneys General, for Plaintiff and Respondent.

Minor admitted the truth of allegations that he committed two counts of lewd acts upon two separate children (Pen. Code,  288, subd. (a)),^[1]misdemeanor battery upon a custodial officer ( 243.1), and misdemeanor assault upon another custodial officer ( 241.1). After a contested dispositional hearing, the court committed minor to CYA.^[2] On appeal, minor contends the court abused its discretion in committing minor to CYA. For the reasons set forth below, we shall affirm the judgment.

I. FACTS AND PROCEDURAL HISTORY

Minors then 10-year-old half brother, John Doe, and the then nine-year-old daughter of his fathers girlfriend, Jane Doe, both accused minor of having continuously sexually abused them over the course of at least a year. Minor was 16 years old at the time of the incidents. Jane Doe described numerous incidents in which minor orally copulated her and in which he compelled her to do so to him. She also alleged minor had attempted to put his penis into her buttocks and vagina on a number of occasions, but stopped, albeit reluctantly and angrily, when she complained that it hurt. She additionally witnessed several incidents between minor and John Doe, including oral and anal sex. She also witnessed minor ejaculate on several occasions. Furthermore, she alleged some of the incidents involved both minor and John Doe sexually molesting her together.

John Doe was reluctant to discuss the incidents because he did not want to get his brother in trouble; however, he described several occurrences during which minor humped him. These incidents included minor rubbing and touching his penis to John Does buttocks and attempts to penetrate his anus. He witnessed minor ejaculate several times. Minor also orally copulated John Doe and compelled him to orally copulate minor as well.

Minor initially denied any sexual wrongdoing with either victim, repeatedly referring to Jane Doe as a liar and a bitch. Minor later speculated that his brother may have witnessed him masturbate on several occasions though unbeknownst to minor. He likewise recalled an incident when he and a friend were touching each others penises, his brother walked in, and they allowed him to join them. Additionally, he maintained that it was possible that while they had slept together, minors penis may have poked out of his boxers and touched his brothers buttocks. When discussing the incidents involving his brother, minor cried and admitted that he had done bad things when he was younger and his hormones were raging. He indicated that he admitted the allegations in court because he wished to spare his brother the trauma of testifying in court. Nonetheless, minor never admitted the full extent of his sexual abuse of his brother, even writing his brother a letter indicating that John Doe had nothing to be upset about with minor, and that, indeed, it was minor who had cause to be angry. Minor never admitted to doing anything with Jane Doe.

At the time the allegations were made, minor lived in a placement facility called Masonic Homes in which his father enrolled him. This was the culmination in his fathers long series of attempts to rectify and rehabilitate minor for his nonsexual aberrant behavior. Minor had lived with his mother for his first five years, during which she exposed him to prostitution, drug use, and physical abuse. At five years of age, minor called the police to report his abuse, he was removed from her custody, and his mother went to jail. He then went to live with his father and stepmother. At age 11, due to minors behavioral problems, he was sent to live with his paternal grandmother for at least a year. Thereafter, he was returned to his fathers care.

At the time of his arrest, minor already had a lengthy history of aberrant behavior, although he had never before entered the juvenile justice system. Minor engaged in a prolific amount of fights, admitting to being involved in 50 to 75 fights in his life. His middle school records alone indicated he was involved in 27 fights of which he was, according to his father, the instigator. Minor had run away from home on two occasions. Minor admitted to being a pyro. Minor was a member of the Duarte Do Rock gang, going by the gang moniker Red, frequently used gang terminology, and yelled out his gang affiliations. He was twice arrested for shoplifting, though he was never charged. Likewise, minor admitted committing petty theft without ever being caught. Minor admitted to having sex initially at the age of 14, having had two partners since then, and already having a child.

Minors father enrolled him in several programs in an attempt to deal with his behavior, including ROTC, San Bernardino Sheriffs Leadership Academy, VETA, CYAs scared straight, and one other program through the Los Angeles County Firefighters. Minor was terminated from all of these programs because he would ditch to go hang out with his friends. Minor was involuntarily psychiatrically hospitalized at the age of 14, during which he received therapy and was treated with antidepressants and antipsychotics. During his stay with his grandmother, she enrolled minor, and he had participated in, eight counseling sessions. Jane Does mother reported that minor had been in therapy with a doctor in West Covina for approximately three years. Finally, minors father enrolled him in the aforementioned Masonic Homes, where he had stayed for approximately two months before being arrested in the current matter.

The People filed a Welfare and Institutions Code section 602 juvenile wardship petition alleging minor committed the crimes of sodomy by use of force against Jane Doe (count 1Pen. Code,  286, subd. (c)(2)), oral copulation of a person under the age of 14 against Jane Doe (count 2Pen. Code,  288A, subd. (c)(1)), lewd act upon a child against Jane Doe (count 3Pen. Code,  288, subd. (a)), oral copulation of a person under the age of 14 against John Doe (count 4Pen. Code,  288A, subd. (c)(1)), and lewd act upon a child against John Doe (Pen. Code,  288, subd. (a)). Minor admitted the truth of the allegations in counts 3 and 5 as felonies; in return, the court dismissed the remaining counts. The matter was continued for the preparation of a probation officers report and a psychological evaluation to aid the court in determining a proper disposition.

Both the Juvenile Probation Case Plan dated February 1, 2006, and the probation officers report dated February 16, 2006, recommended minor be committed to a placement facility. However, in Dr. Marjorie Graham-Howards psychological assessment dated February 8, 2006, she recommended, albeit somewhat ambivalently, that minor be committed to CYA. She noted that pursuant to the Juvenile Sex Offender Assessment Protocol (JSOAP), minor posed a moderate to moderate-high risk for reoffending. In light of Dr. Graham-Howards recommendation, defense counsel sought to have a psychological evaluation of minor conducted; hence, counsel requested a number of continuances in order to have the evaluation completed and to have alternative placements screened.

In that psychological assessment, Dr. Annette Ermshar recommended that minor be placed in a sexual offender placement program in which he would be required to participate in both individual and group counseling; however, she concurred with Dr. Graham-Howards JSOAP assessment that minor posed a moderate to moderate-high risk of reoffending. Nonetheless, a subsequent probation memorandum filed on June 8, 2006, reversed the former stance taken by the probation officer and recommended minor be committed to CYA. That memorandum noted that any sexual offender placement would be limited to retaining minor to the age of 19. And, since minor was already 17, he would remain in a sexual offender placement for less than two years before being released to the public. On the other hand, it concluded that, if committed to CYA, minor would be placed in a mandatory sexual offender program which would continue until he was 21, almost four years. It ultimately noted: It seems apparent that [minor] has a great need for ongoing psychological and sociological assistance if he is ever to be able to succeed in the outside world. The fact that his problems range back to early childhood and are very complex is of great concern. Although the original recommendation was for placement, the possibility that he would be released in approximately six months from placement is unacceptable. CYA is a very stringent and structured situation for [minor] but it seems to also be very thorough in its treatment goals. Therefore, probations recommendation, after careful consideration, is for a CYA commitment.

At a hearing held on July 10, 2006, the court noted: I indicated to [defense counsel] my concerns are protection of the public, thats the main number one concern. The probation thediagnostic report given to me was a moderate to moderate high possibility of re-offending. That means to me I need to protect the public from the minor and the only way I can see that is CYA. Minors fathers counsel likewise indicated that father believed the only reasonable solution to the matter was that minor be committed to CYA. The court thereafter reiterated its prior preliminary stance: At this point I tend to agree with you. The public needs to be protected. He needs to have intensive counselling [sic] that they can give him there. Nevertheless, pursuant to defense counsels requests, the court directed the probation officer to screen minor for sexual offender placement programs which would accept him.

The supplemental probation officers report filed July 28, 2006, indicated that a total of eight programs, including CYA, had been contacted. Three placement programs rejected minor due to his denial of the offenses, his behavioral problems, and his age. Three programs had yet to respond to the probation officers requests. One placement program, Childrens Therapeutic Communities, indicated it would accept minor. CYA indicated that minor would, if committed there, be placed in a sex offender program, attend high school and receive his diploma, receive gang awareness, substance abuse, anger management, and impact of crime on victim counseling. The probation officer again recommended minor be committed to CYA because it would constitute a secure environment permitting him to be stabilized before being released at age 21. She also concluded that placement would require minor be released at too early an age. An additional supplemental probation officers memorandum filed July 28, 2006, indicated that of the remaining three placement programs contacted, only one, Trinity Yucaipa, would accept minor. The additional two programs rejected minor because of his gang issues, fascination with fire, and refusal to take responsibility for the molestations.

While awaiting the contested dispositional hearing, minor attacked a guard at juvenile hall. The court, recognizing that an additional charge would likely be filed, continued the matter, but noted in reading the detention behavior summary, [it] looks like the minor is just pleading to go to CYA.

On August 11, 2006, the People filed a Subsequent Juvenile Wardship Petition alleging minor had battered emergency personnel (count 1 243, subd. (c)(1)) by striking a juvenile hall custodian three times in the upper right chest. As amended on August 23, 2006, the petition alleged one count of felony battery upon a custodial officer (count 1 243.1) and one count of felony assault against a second custodial officer (count 2 241.1). On the Peoples motion, the counts were reduced to misdemeanors, which minor thereafter admitted. The matter was continued for a contested dispositional hearing.

The contested dispositional hearing finally began on November 6, 2006. Dr. Graham-Howard testified consistently with her psychological assessment regarding minors past victimization, behavioral problems, and program participations. However, she agreed that none of the programs in which minor had been involved were geared toward treating sexual offenders. She noted that minors placement in Masonic Homes had incurred mixed results. Dr. Graham-Howard testified that while the JSOAP was not fully recognized as a psychological test, it constituted an instrument which several other psychologists currently use. Moreover, she stated that the score listed in her assessment inadvertently indicated a 28 out of 46, rather than the higher score of 46 out of 48 that it should have been. Furthermore, considering minors conduct subsequent to her initial testing, minors score would have increased; thus, minor was now even more likely to reoffend both criminally and sexually than indicated in her original assessment. She noted that minor still refused to accept responsibility for his actions, having written his brother a letter putting pressure on him as to how to testify and asserting that John Doe had let minor down. She likewise recognized that minor now is in the business of harming people that, you know, are pretty neutral in his life unfortunately.

Dr. Graham-Howard further testified that she has been to CYA, and Chino in particular; has spoken to a number of individuals in its sex offender program; is familiar with that program; has read its protocol; and has made prior recommendations to that program. She described that program as an intensive, very lengthy and thorough sex offender treatment program. She indicated it is a minimum of two years with additional after care in the general CYA population and in the community under parole supervision. Each ward receives a minimum of 20 hours of weekly sex offender specific treatment. It is longer than any similar program available in other placements. She had spoken to individuals at some of the other placement facilities under consideration for minors commitment and concluded that, because they were not locked down facilities, they were inappropriate considering minors history of running away. Ultimately, she recommended minor be committed to CYA, noting it is the only option, that considering events subsequent to her initial report her recommendation was now unequivocal, and that she believed minor would benefit from its programs.

Minors paternal grandmother testified that minor was never involved in fights in primary school, although in middle school he did become involved in fights approximately once a month. She stated that minor never drank or became intoxicated.

Ted Bonzon, the Supervising Case Work Specialist/Program Manager for CYA, testified that he evaluates and updates the sex offender program at CYA, as well as doing some counseling himself. He was part of the committee that wrote the CYA Sex Offender Treatment Program. He likewise wrote the layman brochures regarding the sex offender treatment programs for Norwalk. He stated it is likely that, should minor be committed to CYA, he would be sent to either Norwalk or Chino. He noted that Chino has the same sex offender treatment program and would follow the same curriculum as Norwalk. On average, that program takes three years. CYA would additionally provide behavioral, familial, and substance abuse counseling. Although he could not guarantee minor would be admitted to the program, he believed it likely he would be referred immediately, as there currently was no waiting time for admission. He furthermore noted that minors characteristics suggested he was of a higher risk to reoffend and of greater need for sex offender treatment.

Jane Does mother testified that both Jane Doe and John Doe have had to go through extensive therapy and no longer have the same interpersonal relationships with friends and family due to minors actions. She requested he be committed to CYA and be required to register as a sex offender. Minors father testified: [T]his was not a one-time teenage hormonal act. This was a calculated continuing sexual attack against both children. He stated that CYA is the only acceptable sentence.

The court ultimately committed minor to CYA.

II. DISCUSSION

A. Substantial Evidence Supports the Juvenile Courts Determination That Minor Should be Committed to CYA

Our review of a juvenile courts decision to commit a minor to CYA is deferential. The appellate court reviews a commitment decision for abuse of discretion, indulging all reasonable inferences to support the juvenile courts decision. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) There is no abuse of discretion where the commitment is supported by substantial evidence on the record. (In re Kevin F. (1989) 213 Cal.App.3d 178, 186; In re Tyrone O. (1989) 209 Cal.App.3d 145, 151.)

In determining the appropriate disposition for a ward of the juvenile court, the focus must be on both the need for public protection and the best interests of the minor. (Welf. & Inst. Code,  202, subd. (d); In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.) The court may make a commitment to CYA without first trying less restrictive placements. (In re Asean D. (1993) 14 Cal.App.4th 467, 473; In re Ricky H. (1981) 30 Cal.3d 176, 183, superseded by statute on another ground as stated in In re Michael D. (1987) 188 Cal.App.3d 1392, 1396.) [T]he 1984 amendments to the juvenile court law reflected an increased emphasis on punishment as a tool of rehabilitation, and a concern for the safety of the public. (In re Asean D., supra, at p. 473.) Nonetheless, there must be evidence in the record demonstrating both a probable benefit to the minor by a CYA commitment and the inappropriateness or ineffectiveness of less restrictive alternatives. [Citations.] (In re Angela M., supra, 111 Cal.App.4th at p. 1396.)

1. Minors Request for Judicial Notice is Denied

On May 11, 2007, minor filed a request that we take judicial notice of numerous documents regarding CYA that were never presented to the court below. The documents are: (1) a February 2007 Special Review of High-Risk Issues at the Herman G. Stark Youth Correctional Facility, by the Inspector General; (2) a September 29, 2003, Evaluation of Sex Offender Programs at the CYA by Jerry Thomas Consulting and Training; (3) appendix D of a June 2006 Second Report of Special Master in Farrell v. Tilton, Alameda County Superior Court case No. RGO3079344, titled Audit #1; (4) portions of a December 7, 2006, Third Report of Special Master in the Farrell v. Tilton case; (5) the fact that the remedial plan for CYAs sex offense program was filed on January 31, 2005; (6) the fact that minor is incarcerated at the Herman G. Stark CYA prison in Chino; and, apparently; (7) a Consent Decree filed on November 19, 2004, in the Farrell v. Tilton case.

On May 25, 2007, the People filed opposition to the request on the ground that none of the exhibits were presented to or considered by the juvenile court, and the discretionary decision of a lower court is to be evaluated on the basis of the evidence before the court at the time it made its decision. (People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164, 1173, fn. 5, and cases cited therein; see also People v. Preslie (1977) 70 Cal.App.3d 486, 493 [appellate court should not take judicial notice of matters that were not presented to lower court, where appellate court is to determine matter based on record before lower court].) Indeed, none of the documents were mentioned, referenced, or requested below. In an order issued June 6, 2007, we reserved ruling on the request for consideration with the appeal. Before we address whether the trial court abused its discretion in ordering a CYA commitment, we shall address the minors request for judicial notice.

Minor argues this court may take judicial notice of any matter specified in Evidence Code section 452, even if the matter was not presented to the juvenile court. (Evid. Code,  459, subd. (a).) Minor observes that all the exhibits are records of the executive branch of the state government, and/or reports the accuracy of which has not been disputed by the People. (Evid. Code,  452, subds. (c) & (g).) Moreover, minor argues that all the exhibits either constitute or include facts and propositions that are not reasonably subject to dispute and which are easily verifiable. (Evid. Code,  452, subd. (h).) In essence, minor urges this court to take judicial notice of exhibits A through G because they indisputably show that CYA was a broken system when the minor was ordered placed there in November 2006, and remains a broken system at the time of this appeal.

These arguments do not constitute reasons for this court to take judicial notice of any of the exhibits or their contents. We simply cannot decide whether the juvenile court abused its discretion in ordering a CYA commitment based on evidence that was not presented to the juvenile courteven if that evidence was or is indisputably true. (People v. Superior Court(Lavi),supra, 4 Cal.4th at p. 1173, fn. 5, and cases cited; People v. Preslie, supra, 70 Cal.App.3d at p. 493; cf. People v. Hardy (1992) 2 Cal.4th 86, 134-135 [appellate court properly took judicial notice of court files where both sides requested it and facts were not in dispute].) Accordingly, we deny the minor's request for judicial notice in its entirety.

2. Substantial Evidence Supports the Juvenile Courts Determination That Minor Posed a Threat to Public Safety

Minor contends substantial evidence did not support the courts conclusion that minor posed a threat to public safety, such that imposition of a CYA commitment was required to protect the public.

Minor further maintains the JSOAP instrument used by Dr. Graham-Howard lacked scientific reliability and, therefore, failed to meet the standard for admissible evidence. (People v. Kelly (1976) 17 Cal.3d 24, 30-32.) However, as the People note, minor failed to object below to its admissibility and has, therefore, waived the issue. (People v. Ochoa (1998) 19 Cal.4th 353, 414.) Moreover, minors own expert witness referenced the JSOAP instrument in his psychological assessment: The reader is referred to the psychological assessment report by Dr. Graham-Howard. The results of Dr. Graham-Howard are considered an accurate reflection of [minors] current risk for re-offending. Furthermore, Dr. Graham-Howard testified of the JSOAP instrument: I believe there are several other psychologists that are now using that instrument. Theres a pretty robust literature business for that instrument, again, to be used with appropriate caution recognizing its not yet a psychological test. Its an instrument. Thus, the only evidence admitted below regarding the JSOAP supported its reliability.

Thus, the juvenile court had before it Dr. Graham-Howards assessment, which indicated minor posed a moderate to moderate-high risk of reoffending. This was based on minor having scored a 28 out of 48 points on the JSOAP instrument. Minors expert, Dr. Ermshar, concurred with Dr. Graham-Howards assessment that minor posed a moderate to moderate-high risk of reoffending. However, this conclusion was based on Dr. Graham-Howards inadvertent indication that minor had scored 28 out of 48 points on the instrument when, in fact, he had scored a 46 out of 48 points, which indicated an even higher risk of reoffending. Likewise, Dr. Graham-Howard testified that this risk of reoffending applied to both criminal and sexual behavior. Finally, Dr. Graham-Howard testified that minors behavior subsequent to her initial assessment would increase his JSOAP score and, hence, his likelihood of reoffending. This constitutes substantial evidence that minor posed a threat to public safety.

Nonetheless, minor parses the record, citing facts which are favorable to him and ignoring others which are not as auspicious. Minor contends his molestations were opportunistic rather than predatory, concluding therefrom that minor only posed a threat to those living with him. However, Dr. Graham-Howards assessment concluded that minor posed a moderate to moderate-high risk of reoffending both sexually and criminally. Moreover, minors limited view of the evidence disregards the vast amount of other evidence which indicated minor posed a threat to the community at large. Here, minor admitted to engaging in 50 to 75 fights in his life and school records substantiated this claim. Minor admitted to being a pyro; enjoying setting things on fire. Minor was a member of a gang and participated in gang activity. Minor was arrested twice for shoplifting and admitted committing a petty theft without getting caught. Furthermore, while in custody minor committed a battery against one custodian and an assault against another. Thus, over and above Dr. Graham-Howards JSOAP assessment, substantial evidence in the record supports the courts determination that minor posed a threat to the public.

3. Substantial Evidence Supported the Juvenile Courts Determination That There Were No Suitable Alternative Placements for Minor

Minor similarly contends that substantial evidence does not support the juvenile courts determination that there were no suitable alternative placements for minor. In particular, minor maintains the probation officers reports regarding alternative placements lacked sufficient details regarding the nature of their programs, such that the juvenile court lacked sufficient evidence to determine whether they were appropriate. In addition, minor contends the delay between the jurisdictional determination and the dispositional hearing was the primary catalyst for the courts rejection of placement because minor no longer had sufficient time to complete an entire sex offender program in placement.

It is true that the probation officers reports regarding the alternative placements considered for minor lacked specificity as to the nature and curricula of their programs. This is particularly true of the programs that would have accepted minor. Indeed, there is substantially more information regarding the programs that rejected minor. Nonetheless, it is apparent it was not so much the content of their programs, but the nature of their facilities and the duration of their programs which dissuaded the juvenile court from selecting an alternative program.

The probation officers reports repeatedly stressed that minor required long-term treatment. An alternative placement of minor would substantially limit the duration of such treatment. Indeed, no alternative placement would have permitted minors treatment to continue beyond the age of 19. Moreover, because minor was already 17 years old and all the treatment programs were at least two years long, minor would not even complete the full program were he committed to an alternative placement. Furthermore, Dr. Graham-Howard testified she had contacted some of the alternative programs considered for minor, including one which had accepted him, and concluded that they were inappropriate for minor. The programs were not locked down, minor was considered a flight risk, and the programs were ill equipped to deal with minors behavioral problems. Thus, substantial evidence supported the courts determination that an alternative placement was inappropriate.

Minors characterization of Dr. Graham-Howards testimony concerning these matters as hearsay and lacking foundation are unavailing. Minor failed to object below and has, therefore, waived the contention on appeal. (People v. Gurule (2002) 28 Cal.4th 557, 609.)

Finally, minors contention that the delay between the jurisdictional and dispositional hearing accounted for the impropriety of an alternative placement due to his inability to complete the program is unavailing as that interval was primarily minors responsibility. Indeed, most of the duration between those hearings consisted of minors requests for continuances so that he could procure an alternate psychological assessment, potential testimony therefrom, and his request that the probation department screen all available alternative placements. Moreover, minors perpetration of the battery and assault in juvenile hall resulted in yet another continuance so that that all charges could be disposed of at once. Hence, minor was responsible for any delay.

4. Substantial Evidence Supported the Juvenile Courts Determination That Minor Would Benefit from a CYA Commitment

Minor contends substantial evidence fails to support the courts determination that he would benefit from a CYA commitment. He contends all the evidence elicited at the hearing concerned the sex offender program at Norwalk, not Chino. He further maintains there was no guarantee he would get in. We conclude substantial evidence supported the courts determination that minor would benefit from a CYA commitment.

Dr. Graham-Howard testified that she had been to CYA, she had been to Chino in particular, was familiar with its program, had read its protocol, and has made prior recommendations to CYA. She indicated the CYA program is an intensive, very lengthy and thorough sex offender treatment program. She described the program as being a minimum of two years with additional after care in the general CYA population and in the community thereafter under parole supervision. The program at CYA is longer than treatment available in alternative placements. Ultimately, she believed a CYA placement would benefit minor and no longer had any reservations about such a recommendation.

Ted Bonzon likewise testified he is familiar with the sex offender program utilized throughout CYA. He indicated that Chino followed the same program curriculum used at other facilities within CYA. On average, that program takes three years. While he could not guarantee minor would be admitted to the program, he believed there currently existed no waiting list to get in and that minor would be referred right away. Aside from the sex offender program, CYA offers behavioral, familial, and substance abuse treatment; thus, even if minor failed to be admitted to the sex offender program, he would still benefit from CYAs other programs. Therefore, substantial evidence supported the courts determination that minor would be benefited by the reformatory, education, discipline, and treatment provided by the [CYA].

Minors reliance on In re Aline D. (1975) 14 Cal.3d 557 (Aline D.) is misplaced. In Aline D., the Supreme Court reversed a commitment to CYA on the ground that the only basis upon which the commitment was made was that there was no other alternative placement for the minor. The court stated: The record before us reflects that the referee ordered the CYA commitment solely because there appeared to be no other available placement facility. (Id. at p. 559, italics added.) In addition, all parties interested in the disposition determined that a CYA commitment was inappropriate. (Id. at p. 561.) The court concluded that lack of an alternative placement cannot be the sole determining factor in a CYA commitment. (Id. at p. 567.)

Here, the juvenile court did not commit minor to CYA solely for one reason; such as there were no alternative placements from which he could not run. The court noted the alternative options, but found such placements inappropriate under the circumstances of this case. The juvenile court in the instant case considered additional factors when committing minor to CYA. For instance, the court expressed the potential benefits to the minor from a CYA commitment, such as minors educational and treatment needs. The court also noted the need for protection of the public. It is clear that, unlike the court in Aline D., the court in the instant case did not commit minor to CYA solely because there were no alternative placements. The court was fully satisfied that minor would benefit by the treatment provided by CYA. Likewise, Aline D. was decided before the amendment of Welfare and Institutions Code section 202, which introduced protection of society and punishment as goals of the juvenile law. Moreover, in Aline D., all the parties concerned found placement in CYA inappropriate.

The statutory scheme guiding the juvenile court in its treatment of juvenile offenders contemplates a progressively restrictive and punitive series of disposition orders in cases such as that now before usnamely, home placement under supervision, foster home placement, placement in a local treatment facility and, as a last resort, Youth Authority placement. (Aline D., supra, 14 Cal.3d at p. 564.) Nonetheless, while CYA is considered a final treatment resource (In re Michael R. (1977) 73 Cal.App.3d 327, 337), there is no absolute rule that a Youth Authority commitment should never be ordered unless less restrictive placements have been attempted. (In re Ricky H., supra, 30 Cal.3d at p. 183, superseded by statute on another ground as stated in In re Michael D., supra, 188 Cal.App.3d at p. 1396.) Instead, the record need only show, as it does here, probable benefit to the minor from commitment to CYA and that less restrictive alternatives were considered and rejected. (In re George M. (1993) 14 Cal.App.4th 376, 379; In re Teofilio A. (1989) 210 Cal.App.3d 571, 576.)

Minor repeatedly notes that CYA is the juvenile courts final treatment option, citing In re Teofilio A., supra, 210 Cal.App.3d 571 for this proposition; however, In re TeofilioA. also recognized that less restrictive placements do not actually have to have been tried. (Id. at p. 577.) Moreover, the current case is factually distinguishable from In re Teofilio A. There, the court found that the minors offense was a single $60 sale of cocaine, he had committed no aggressive or assaultive behavior, and found no evidence to support the trial courts contention that minor demonstrated criminal sophistication. (Id. at p. 578). Here, minors offenses concerned the ongoing sexual abuse of Jane Doe and John Doe for over a year in which he had caused them pain and manipulated them into performing sex acts with him and each other. Minor also committed an assault against an officer while in juvenile hall and had been involved in numerous fights. Finally, the manner of minors continued sexual abuse supports the juvenile courts determination that minor exhibited criminal sophistication.

B. The Juvenile Court Did Not Err in Imposing CYA Because It Did Not Base Its Decision on Requiring Minor to Register as a Sex Offender

Minor contends the court erred in committing him to CYA because its decision to do so was based, at least in part, on its desire to impose a lifetime sex offender registrant requirement. It is notable that minor cites no authority for the proposition that the juvenile court is prohibited from considering whether a juvenile sex offender should be required to register as a sex offender when considering whether to commit him to CYA. Rather, minor cites In re Bernardino S. (1992) 4 Cal.App.4th 613, which stands for the reverse proposition that a minor cannot be required to register as a sex offender unless the court has committed him to CYA. (Id. at pp. 620-621.) However, that case in no way stands for the contrary position. Indeed, if anything, we believe it supports the idea that the court may consider such a factor when determining the proper disposition: Juveniles subjected to that disposition were more likely to be violent or repeat offenders than those receiving a less restrictive disposition. (See Welf. & Inst. Code,  725.5 [factors court must consider in determining proper disposition are age, circumstances and gravity of the offense, and previous delinquent history].) (Id. at p. 621.) Thus, here, where, as indicated above, the minors history reveals violent and repeat offenses, the circumstances and gravity of the offense[s] are horrendous, and the minor has a previous delinquent history, consideration of whether to commit him to CYA so as to impose a sexual offender registration requirement does not appear at all inappropriate.

Minor attempts to analogize the mentally disordered sex offender proceedings (MDSO) with those of juvenile delinquency dispositions for the proposition that the trier of fact is forbidden from considering the consequence of the verdict in making its ultimate determination. The MDSO proceedings discussed in People v. Allen (1973) 29 Cal.App.3d 932, 938 are factually and legally distinguishable from the juvenile delinquency proceedings at issue in this case. In Allen, the court held that [t]he sole issue, therefore, for the jurys determination is clear. Nowhere do the statutory provisions refer to the question of whether the person could benefit by treatment in a state hospital as being one for the jurys determination, that question, among others, having been committed to the province of persons other than the jury. (Id. at p. 935, italics added.) Here, the judge, not a jury, is the entity determining both the truth of the allegation and the subsequent disposition of the minor. Likewise, as discussed above, the judge is required in juvenile delinquency proceedings to determine whether a disposition will benefit the minor in a delinquency proceeding. Moreover, Allen concerns the ultimate finding in the case, not the disposition or sentencing which occurs thereafter. Furthermore, minors contention that the courts error in considering the registration requirement as a factor in determining commitment to CYA is particularly egregious because CYA is likely to harm minor, is circular in that it would require the juvenile court to look at the consequence of its decision as well, the very thing he purports to ban a la Allen.

Finally, we do not find that it is at all apparent that the juvenile court relied on a determination the minor should be required to register as a sex offender when it determined that he should be committed to CYA. As minor points out, the juvenile court only mentions the sexual offender registration requirement twice. In the first instance, the court notes, I cannot put him back into the community, and I dont think that the fact that he has to be a [section] 290 registrant hasnt been the primary factor that weighed on me in this case because I know what Im sentencing him to. The double negative contained in the latter phrase makes a clear reading of the sentence impossible. Equally likely are interpretations that either would suggest the court intended to do whatever was necessary to require minor to register as a sex offender or that the court simply was aware that committing minor to CYA would come with a commensurate registration requirement. In the second instance, the court states whether or notIpossibly definitely need to have him be a [section] 290 registrant because that kind of conduct shows me that theres something that were not going to be able to cure in the near future. (Italics added.) The whether or not and possibly definitely clauses in this sentence similarly make a definitive explanation of the courts intent unfeasible. Thus, minor has presented no authoritative evidence that the court imposed a CYA commitment in reliance on its desire to impose a registration requirement. Furthermore, even to the extent it could be determined that it did, we would find any error harmless because substantial evidence supported minors commitment to CYA, making it unlikely a favorable result would obtain were we to reverse. (People v. Watson (1956) 46 Cal.2d 818, 836-837.)

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Gaut

Acting P.J.

/s/ Miller

J.

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

^[2]In an immense reorganization of California corrections in 2005, CYA became the Juvenile Justice Division within the Department of Corrections and Rehabilitation. (Gov. Code,  12838, 12838.3.) For the sake of clarity, we will refer to the Juvenile Justice Division as CYA.