Filed 12/29/17 In re J.S. CA3
NOT TO BE PUBLISHED



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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In re J.S., a Person Coming Under the Juvenile Court Law. C082683


THE PEOPLE,

Plaintiff and Respondent,

v.

J.S.,

Defendant and Appellant.

(Super. Ct. No. JV136701)




This appeal is from the juvenile court’s dispositional order committing now 19-year-old J.S. to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ), for a maximum term of four years. Minor contends the juvenile court abused its discretion in committing him to DJJ. In addition, minor argues mandatory sex offender registration for a juvenile who is committed to the DJJ and adjudicated of violating Penal Code section 288, subdivision (b), violates (1) the prohibition on cruel and unusual punishment and (2) his equal protection and due process rights. Finally, minor contends he is entitled to further precommitment credits, and the People agree. Consequently, we remand the case to the juvenile court to reconsider and to recalculate minor’s credits, if necessary, but otherwise affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Minor (age 17 in May 2015) and D.H. (age 10 in May 2015), have the same biological mother. During the relevant period, minor lived with his mother, maternal grandparents, and mother’s two daughters. D.H. also lived with the family half the time, spending the other half with his father, who lived across the street from minor with D.H.’s paternal grandparents. When D.H. was staying with their mother, he and minor shared a bedroom.
In August 2014, D.H.’s ex-stepmother Susan was helping him with his tablet device and noticed pornographic Web sites in the browser history. The history indicated the sites were visited while D.H. was staying with his mother. With the permission of D.H.’s paternal grandmother, Susan continued looking in the tablet and found a “troubling” chat between minor and D.H. in a messenger application called Kik. When the paternal grandparents tried to speak with D.H. later that day about the chat, D.H. became “extremely upset.” The blood drained from D.H.’s face, he started shaking, and he refused to talk about it. D.H. eventually told his paternal grandmother the chat was true, and minor was having sex with him and “putting his penis in my butt.” D.H. also said he had previously told his mother, who cried and tried to stop minor, but minor continued the abuse. The following morning, the paternal grandmother called Child Protective Services and the police. Proceedings regarding custody of D.H. were started in family court in September 2014, and custody was awarded to D.H.’s father.
D.H. was subsequently interviewed at the SAFE Center, and a video of the interview was entered as evidence at the disputed jurisdictional hearing held in June and July 2015. D.H. told the interviewer the minor first acted sexually with him when he was in second grade and seven years old. They were playing with toy guns in their bedroom and minor said D.H. had to be “revived.” Minor told D.H. to get on all fours and then pulled down D.H.’s shorts and underwear. Minor got behind D.H. on his knees, spit on his hand, wiped D.H.’s rear, put his penis inside D.H., and began to move backwards and forwards. After “a little bit,” D.H. got up and ran to the bathroom. Their parents came home, and “the game stopped.” Minor warned he would hurt D.H. if D.H. told anyone what happened. Two days later, D.H. told their mother that minor was touching him, and the mother “beat” minor and made him apologize. Although minor stopped acting sexually with D.H. for “a while,” he started again and had “many more” sexual acts with D.H. Each time, minor threatened to hurt D.H. if he told anyone. One time, minor said D.H. could not leave for school until they had sex. Minor took off D.H.’s clothes, told D.H. to sit in his lap, spit on his hands, rubbed the spit on D.H.’s buttocks, and inserted his penis. They stopped when their mother walked in on them. The mother asked what was going on and cried when D.H. told her. She yelled at minor, who apologized and promised never to do it again. But the abuse continued.
During the contested jurisdictional hearing, D.H. testified minor rubbed his penis on D.H.’s buttocks and put his penis inside D.H.’s buttocks at least three times, even though he did not want it to happen. D.H. testified minor told him not to tell anyone, and he was scared. They always had sex in their bedroom, with D.H. either laying down or bent over. D.H. testified he would tell minor he had to use the bathroom when minor starting asking to have sex with him, and sometimes he was able to get away. D.H. testified he tried to tell his mother that minor was touching him inappropriately, and his mother made minor apologize to him. D.H. also testified that the day Susan and his paternal grandmother found the messages on his tablet, he had chatted with minor on the Kik messenger application and said “no” to having sex again. Despite D.H.’s refusals via the messenger, later that day minor rubbed his penis on D.H.’s buttocks while D.H. was naked from the waist down. D.H. testified he did not refuse minor in person because he was afraid minor would be mad.
D.H. and minor’s mother testified during the contested jurisdictional hearing that when D.H. was six or seven years old and minor was 12 or 13 years old, she walked in on the boys one morning and found D.H. naked and sitting on top of minor’s lap. Mother testified minor was dressed at the time. As a result, the mother instituted “privacy rules” requiring the children to leave the doors open while they were in their rooms and to get dressed and undressed in separate rooms. Still, mother testified she was unsure if the rules were enforced by the maternal grandmother or mother’s oldest daughter, who watched the children when mother left for work at 6:15 a.m. and returned at 5:30 p.m., Monday through Friday. Mother denied minor abused D.H. and testified D.H. never told her about any abuse.
In July 2015, the juvenile court found true one count of felony lewd act on a child less than 14 years old (§ 288, subd. (a)) and two counts of felony lewd acts on a child less than 14 years old by force (§ 288, subd. (b)(1)). During the disposition hearing on July 31, 2015, and August 3, 2015, the juvenile court adjudged minor a ward of the court. Despite the probation report’s recommendation for a “Level A” placement, the juvenile court imposed and stayed Level A placement, and ordered probation in the care and custody of his mother, with credit for 223 days of electronic monitoring and 61 days in juvenile hall, and a maximum confinement period of 14 years eight months. The court also ordered sexual offender treatment, as directed by the probation officer. The court warned minor that “even a violation of probation you could wind up at DJJ,” and, if he were committed to DJJ, he would be required to register as a sex offender for the rest of his life.
During progress hearings on September 1, 2015, and October 29, 2015, the court noted minor was “doing what he needs to do,” including participating in sexual offender counseling. The court stated during the September 2015 hearing the “plan” was to “do a couple” of monthly progress hearings; so long as minor remained “on track,” the court would eventually vacate the Level A placement and allow minor to complete his counseling “on his own.”
A progress report filed on December 9, 2015, stated minor had been arrested on December 7, 2015, for being a minor in possession of a firearm capable of being concealed upon the person, being a felon in possession of a firearm, and receipt of stolen property. (§§ 29610, 29800, subd. (a)(1), 496.) At school, minor had four “ ‘cut’ unverified absences,” 12 tardies, two unverified absences, and two suspensions. In addition, in November 2015, minor had a verbal argument with his football coach during a game and a separate argument with two students. Still, minor was participating in his sexual offender treatment and had made all appointments. The report recommended minor’s previously stayed Level A placement be imposed.
On December 9, 2015, a notice of probation violation was filed alleging that minor violated probation for failing to obey all laws by committing: first degree burglary (§ 459; count one), active participation in a criminal street gang (§ 186.22, subd. (a); count two), receipt of stolen property (§ 496, subd. (a); count three), unlawful possession of a firearm (§ 29820, subd. (b); count four), and unlawful possession of a firearm capable of being concealed (§ 29610; count five).
On March 8, 2016, minor admitted to violating the terms of his probation by committing counts one and five. The remaining allegations were dismissed.
On June 6, 2016, the juvenile court continued minor as a ward of the court and committed him to the DJJ. His maximum commitment was four years, with 183 days of custody credit for his detention in a youth detention facility. The juvenile court explained it was imposing commitment because the minor’s original offenses qualified him for DJJ, and the probation department had at the time recommended Level A placement. However, reasoned the court, minor had been placed on probation and given the chance to show he could make better choices, an opportunity which minor squandered. The probation violation charges were “extremely serious,” and involved breaking into a home and possessing a gun. The court expressed concern minor would now be subject to a lifetime requirement to register as a sex offender but acknowledged that was the status of the law. The court stated it was “clear” that minor was “in desperate need of lots of reformatory services.” The court found commitment to DJJ would provide the “only rehabilitative services available” that would help minor avoid going to prison as an adult. The court reasoned it was probable minor would benefit from the “discipline and structure” offered by DJJ. Minor filed a timely appeal.
DISCUSSION
I
Minor contends the juvenile court erred in committing him to DJJ. According to minor, the record establishes he was a well-behaved young man, with minimal behavior problems at school and at home, and no prior criminal history. In addition, minor was doing well in the juvenile sex offender treatment. Minor also points to reports he exhibited good behavior during his initial detention in juvenile hall, including a November 2014 probation memorandum stating minor had no reported incidents and a December 2014 psychological evaluation stating minor had earned “honor status” in juvenile hall. As such, minor argues, the court should have afforded him the opportunity to benefit from a less restrictive disposition. We disagree that the juvenile court abused its discretion.
In determining the appropriate disposition in a delinquency proceeding, the juvenile court must consider public safety, victim redress, and the minor’s best interests, including the minor’s “educational, physical, mental health, and developmental-services needs.” (Welf. & Inst. Code, § 202, subd. (d); Cal. Rules of Court, rule 5.651(b)(2)(D).) In addition, the court must consider (1) the minor’s age, (2) the circumstances and gravity of the minor’s offense, and (3) any prior history of delinquency. (Welf. & Inst. Code, § 725.5; In re Jonathan T. (2008) 166 Cal.App.4th 474, 484-485.)
Although juvenile law “contemplates a progressively more restrictive and punitive series of dispositions,” a DJJ commitment may be considered without prior resort to less restrictive placements. (In re M.S. (2009) 174 Cal.App.4th 1241, 1250.) A juvenile ward may be committed to the DJJ only if the court is fully satisfied the mental and physical qualifications of the juvenile are such as to render it probable that he or she will be benefited by the commitment. (Welf. & Inst. Code, § 734.)
We review a juvenile court’s commitment decision for abuse of discretion, “indulging all reasonable inferences to support the juvenile court’s decision.” (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) No abuse of discretion occurs where the record demonstrates “both a probable benefit to the minor . . . and the inappropriateness or ineffectiveness of less restrictive placements.” (Ibid.)
Despite minor’s contentions, given the juvenile court’s full knowledge of and careful consideration of all the relevant factors, we conclude there was no abuse of discretion. In placing minor on probation in August 2015, the juvenile court gave minor the opportunity to live with his family and participate in outpatient services, warning that “even a violation of probation you could wind up at DJJ.” Four months later, he violated probation. Moreover, his original crimes (§ 288, subds. (a) & (b)) and new crimes (violating probation by committing first degree burglary and unlawfully possessing a firearm capable of being concealed) all involve felonies and, as the juvenile court noted, are “extremely serious” charges. (§§ 461, 29700, subd. (a).) In addition, minor appeared to be having difficulties at school, with multiple tardies, unverified absences, suspensions, and arguments with his football coach and other students. The juvenile court was aware of minor’s three-month-long engagement in sex offender treatment and success during his initial detention in juvenile hall, but still found minor was “in desperate need of lots of reformatory services.” We cannot say the juvenile court abused its discretion in concluding public safety would be better served and minor would derive a probable benefit from treatment at DJJ, namely the “only rehabilitative services available . . . that are likely to avoid him going to state prison down the road.”
II
At the time of minor’s commitment, the law required that a minor committed to DJJ for violating section 288, subdivision (b), must upon his or her discharge register as a sex offender under section 290 for the rest of his life. (§ 290.008, subds. (a) & (c); see In re Bernardino S. (1992) 4 Cal.App.4th 613, 619-620, [section 290 “requires registration of juvenile wards only when they are discharged or paroled from the [DJJ] after having been committed for one of the enumerated offenses”].) “The purpose of the mandatory registration statute is not to punish, but to make sex offenders deemed likely to recidivate readily available for police surveillance and ‘to notify members of the public of the existence and location of sex offenders so they can take protective measures.’ [Citation.]” (Ruelas v. Superior Court (2015) 235 Cal.App.4th 374, 379.)
Minor contends this lifelong registration requirement violates the prohibition against cruel and unusual punishment. In support of his argument, minor cites Miller v. Alabama (2012) 567 U.S. 460 [183 L.Ed.2d 407] (Miller), in which the United States Supreme Court held that mandatory life sentences without the possibility of parole for juvenile offenders violate the Eight Amendment’s prohibition on cruel and unusual punishment.
Despite the policy concerns raised in Miller regarding punishment of juvenile offenders, it is clear the juvenile sex offender registration law is not punishment, and minor’s claim that registration is cruel and unusual punishment must fail. (In re J.C. (2017) 13 Cal.App.5th 1201; see also In re Alva (2004) 33 Cal.4th 254, 262 [the sex offender registration law “is not a punitive measure subject to either state or federal proscriptions against punishment that is ‘cruel’ and/or ‘unusual’ ”].)
III
Case law has established a minor is entitled to “precommitment” credit for the days he was detained in juvenile hall pending resolution of the charges against him. (In re Eric J. (1979) 25 Cal.3d 522, 536.) The parties agree that during the June 2016 disposition hearing, the juvenile court failed to include credit for the 61 days minor spent in juvenile hall during his initial detention in 2014, as calculated by the juvenile court during the first disposition hearing in 2015. On remand, the juvenile court will again have the opportunity to determine for itself and fully credit all days minor was in detention.
DISPOSITION
We remand the case to enable the juvenile court to recalculate minor’s credit for time in custody prior to commitment. If changes to precommitment credits are in order, the juvenile court is directed to prepare an amended commitment order and to forward a certified copy to the Department of Corrections and Rehabilitation. The dispositional order is otherwise affirmed.


NICHOLSON , J.


We concur:


BLEASE , Acting P. J.



DUARTE , J.