In re Michael C.

Filed 7/12/06 In re Michael C. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 FOUR

I.

INTRODUCTION

Appellant Michael C., already a ward of the court, entered a plea in which he admitted violation of Penal Code section 261.5, subdivision (b) (unlawful sexual intercourse with a minor not more than three years younger than the perpetrator), a misdemeanor. The court subsequently ordered him to the California Youth Authority (CYA) for a maximum period of confinement and directed him to pay $11,000 in victim restitution. Appellant argues that the trial court abused its discretion both in making the commitment itself, and in setting the length of the commitment. He argues further that there was insufficient evidence to support the restitution award. We conclude that both the CYA commitment and the restitution order were supported by substantial evidence. Regarding the maximum period of confinement, we remand for a determination based on the specific facts and circumstances of appellant's case.

II.

PROCEDURAL AND FACTUAL BACKGROUND

Appellant was first arrested in July 1999 on suspicion of burglary. The court later found that appellant and some friends broke into a home while on a school field trip. Several items taken from the home were later found in appellant's residence. The court subsequently found true charges of first degree burglary and misdemeanor theft. Appellant was adjudged a ward of the court and placed on probation.

On April 10, 2003, a referral was received by the San Mateo Police Department alleging that appellant stole another student's purse from the gymnasium at his high school. The court ultimately found true a charge of felony possession of stolen property and committed appellant to Camp Glenwood. Later that year, while at Camp Glenwood, a fellow student accidentally stepped on appellant's foot as they were entering a classroom. Appellant responded by stabbing the student with a pencil. In December 2003, a petition alleging misdemeanor battery was sustained and appellant was ordered to the CYA for a 90-day diagnostic evaluation. He was recommitted to Camp Glenwood following this period.

On the evening of October 8, 2004, while on a home pass, appellant, then 17 years old, met up with a group of friends at a Redwood City movie theater. The group decided to return to appellant's house where they played video games and listened to music in the living room. Appellant and a 15-year-old female later moved to the kitchen and began drinking tequila, which was obtained from an unlocked liquor cabinet. The two of them ultimately ended up in appellant's bedroom where they had sexual intercourse.

The next day, the 15-year-old female told her friends and a school counselor that she had been raped. On October 27, 2004, appellant was arrested on suspicion of rape. On December 8, 2004, the San Mateo District Attorney filed a petition against appellant, charging him with felony rape by force or fear (Pen. Code, § 261, subd. (a)(2); count one); felony rape by intoxication (Pen. Code, § 261, subd. (a)(3); count two); felony false imprisonment (Pen. Code, §§ 236, 237; count three); and misdemeanor unlawful sexual intercourse with a minor (Pen. Code, § 261.5, subd. (b); count four). Appellant admitted to having sex with the minor but maintained that the encounter was consensual. A plea agreement was subsequently reached in which appellant agreed to plead to count four. In exchange, the district attorney dismissed the remaining counts.

A probation report submitted on April 13, 2005, recommended that, based on the facts, appellant be committed to the CYA. The report also indicated that appellant's probation officer had spoken with the victim's mother about restitution. According to the report, the victim's mother told the probation officer that she had incurred $10,000 in copayments for her daughter's â€