In re Luis M.

Filed 8/18/06 In re Luis M. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Defendant Luis M., a minor, contends the juvenile court erred in committing him to California Youth Authority because there was no showing that he would benefit from the restrictive placement. We disagree. Defendant also contends that the court failed to exercise its discretion in setting the maximum term of confinement. We agree and remand to the juvenile court so that it can exercise its discretion to determine the maximum term of confinement.

Procedural Background

A supplemental petition filed in Napa County Juvenile Court alleged that defendant Luis M. (born in January 1989) came within the provisions of Welfare and Institutions Code section 602[1] based on allegations of forcible rape (Pen. Code, § 261, subd. (a)(2); count one), sexual battery by restraint (Pen. Code, § 243.4, subd. (a); count two), false imprisonment by violence (Pen. Code, § 236; count three), and using a minor for commercial sex acts (Pen. Code, § 311.4, subd. (b); count four). Count four was subsequently amended to reference non-commercial sex acts (Pen. Code, § 311.4, subd. (c)). Gang allegations in the petition were dismissed on the People's motion.

The petition also alleged prior sustained petitions from April 16, 2003 and October 15, 2004, for purposes of disposition. The 2003 sustained charge was for carrying a dirk or dagger (Pen. Code, § 12020, subd. (a)). The 2004 sustained charge was for misdemeanor driving without a license (Veh. Code, § 12500, subd. (a)). Defendant was on probation at the time of the present offenses.

After a contested jurisdictional hearing, the court sustained all four counts in the petition and found defendant in violation of his probation. At the dispositional hearing, the court committed defendant to the California Youth Authority (CYA) for a maximum term of 11 years 2 months.[2]

Factual Background

The victim, Vanessa D., was a 14-year-old ninth grader at the time of the offenses. She dated defendant for a short time in fall 2004, but their relationship was not sexual. At school on the morning of January 5, 2005, defendant took $40 from Vanessa's pocket. During morning break, defendant and another boy, Dario, told Vanessa she could have the money back if she went with them to defendant's car.

Instead of returning the money, defendant drove Vanessa and Dario to his house. Defendant put a movie on the TV in his room and he and Dario began drinking liquor. Vanessa did not drink. Defendant and Dario each began touching Vanessa's breasts and would not stop when she asked them to stop. Subsequently, the three of them drove to the house of another male, Victor, and brought him back to defendant's house.

The males continued drinking. Defendant began recording Vanessa with a video camera. He told Dario to touch Vanessa and Dario touched her all over. Defendant handed the camera to Victor, stating that he wanted to â€