Filed 12/22/05 In re Michael V. CA4/2

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

FOURTH APPELLATE DISTRICT

 

DIVISION TWO

 

 

 

In re MICHAEL V., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,   Plaintiff and Respondent,   v.   MICHAEL V.,   Defendant and Appellant.	E037980   (Super.Ct.No. J179464)   O P I N I O N

 

APPEAL from the Superior Court of San Bernardino County. Margaret A. Powers, Judge. Affirmed in part; reversed in part.

William D. Holman, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Deputy Senior Assistant Attorney General, and Robert M. Foster, Supervising Deputy Attorney General, for Plaintiff and Respondent.

Michael V. (minor) appeals from the disposition order in a Welfare and Institutions Code section 602^[1] proceeding. He contends that the court abused its discretion in committing him to the California Youth Authority (CYA) and that the court failed to exercise its discretion in setting his maximum period of physical confinement, pursuant to a recent amendment to section 731.

We find no abuse of discretion in the court's decision to commit minor to CYA. However, we agree that section 731, subdivision (b) gives the court the discretion to determine a maximum term of physical confinement which is less than the maximum term set for adult offenders.

FACTUAL AND PROCEDURAL BACKGROUND

On December 5, 2001, the San Bernardino County District Attorney filed a section 602 petition charging minor with one count of oral copulation by force (Pen. Code, § 288a, subd. (c)(2)), two counts of sodomy by force (Pen. Code § 286, subd. (c)(2)), two counts of committing a lewd act upon a child under the age of 14 (Pen. Code § 288, subd. (a)), and one count of sexual battery by restraint (Pen. Code § 243.4, subd. (a)). Minor, who was 15 years old at the time, allegedly orally copulated and sodomized a six-year-old boy.

On March 19, 2002, at a pretrial hearing, minor admitted a single charge that he committed a lewd act upon a child under the age of 14. The court dismissed the other charges, upon the district attorney's motion. Minor was detained in his stepfather's home pending the dispositional hearing. At the dispositional hearing, the court found that minor came within section 602, and placed minor in juvenile hall to await further placement. On May 8, 2002, minor was placed in the Optimist Youth Home in Los Angeles County.^[2] He failed to make any progress in that treatment program and was thus moved to the Children's Home of Stockton on November 19, 2002.

On April 6, 2004, the San Joaquin County District Attorney filed a Welfare and Institutions Code section 602 petition charging minor with two counts of indecent exposure. (Pen. Code, § 314.) The two acts were alleged to have taken place in December 2003 and January 2004, while minor was residing in the Children's Home of Stockton. Minor told the police that he and another resident exposed themselves to each other and repeatedly orally copulated each other.^[3] On June 11, 2004, minor admitted the allegation that he committed one act of indecent exposure. The court dismissed the other count and transferred the case to San Bernardino County for disposition. On June 24, 2004, minor's placement at the Children's Home of Stockton was terminated because he turned 18. He was released to the custody of his stepfather. Minor was later detained in juvenile hall pending disposition.

On October 6, 2004, a probation officer filed a report recommending that minor undergo a 90-day CYA diagnostic evaluation. This recommendation was based on minor's past behavior, his current offense, his failure to seek counseling after being released from placement, even though he admittedly needed continuous counseling for his sexual behavior, and the need for more rehabilitation.

On January 14, 2005, the court ordered minor to CYA for the 90-day diagnostic evaluation. At the end of the 90-day period, it was recommended that minor be committed to CYA because he needed a well-supervised and structured setting to address his inappropriate sexual behavior.

On April 14, 2005, the dispositional hearing was held. The court noted that although minor was now 18 years old, he was under 18 at the time of the offense. The court considered the seriousness of the current offense, minor's previous delinquency history, the safety and protection of the public, the professional help and intensive counseling available at CYA, minor's prior unsuccessful attempts at rehabilitation, his lack of remorse, his poor moral and social judgment, his failure to cooperate with probation, his violation of court orders, and his undesirable associations. The court stated that it had weighed and considered less restrictive alternatives, but rejected them as inappropriate. The court then ordered minor committed to CYA and set the maximum period of confinement at eight years two months.

ANALYSIS

I. The Court Did Not Abuse its Discretion in Committing Minor to CYA

Minor contends that the court abused its discretion by committing him to CYA because the court allegedly failed to consider the facts, circumstances, and progress in this case. We find no abuse of discretion.

A. Standard of Review

Our review of a juvenile court's decision to commit a minor to CYA is highly deferential. We indulge all reasonable inferences in favor of the juvenile court's decision, and will not reverse the decision so long as there is evidence which demonstrates a probable benefit to the minor from commitment to CYA and that less restrictive alternatives would be ineffective or inappropriate. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.)

B. There Was No Abuse of Discretion

In making its decision to commit minor to CYA, the court considered minor's history of inappropriate sexual conduct, as well as the current offense. The record shows that minor began to experiment sexually when he was 11 years old; he and another boy his age started to masturbate and orally copulate each other. When minor was 13 years old, he engaged in the same acts with another boy his age. When he was approximately 15 years old, minor began orally copulating and sodomizing a six-year-old boy whom he had been hired to babysit. This sexual misconduct was the subject of minor's initial section 602 wardship. Minor was placed in the Optimist Youth Home to rehabilitate, but failed to make any progress there. He was therefore moved to the Children's Home of Stockton, but while there, he committed the acts of masturbation and oral copulation with a fellow resident. Minor had a continual sexual relationship with the other resident, stating that it was â€