In re Devon F

Filed 3/20/06 In re Devon F. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

The minor was committed to the California Youth Authority (Youth Authority) after violating his probation by running away as he was being transported to a new placement. On appeal, he contends that the juvenile court abused its discretion by committing him to the Youth Authority, and that the trial court failed to exercise its statutory discretion in calculating his maximum period of confinement under Welfare and Institutions Code section 731, subdivision (b). We find no abuse of discretion in the minor's commitment to the Youth Authority, but remand to the juvenile court in order for it to exercise its statutory discretion in setting the minor's maximum period of confinement.

I. Background

The minor originally was placed on probation in January of 2003, after a petition was sustained against him for fighting in public and misdemeanor possession of marijuana. (Pen. Code, § 415, subd. (1); Health & Saf. Code § 11357, subd. (e).) He was placed on formal probation for six months. While on probation, he committed a residential burglary and admitted a charge of felony second degree burglary. (Pen. Code, §§ 459, 460, subd. (b).) He was continued on probation with a 45-day period of electronic monitoring. The minor violated the electronic monitoring program rules by leaving his home without permission on two occasions and repeatedly missing his weekly drug tests. He was at large until detained on June 23, 2003. He failed to appear in July of 2003 for a scheduled drug test and his whereabouts were unknown for the afternoon and evening. He was found in violation of probation, but his participation in the electronic monitoring program was extended for a period of only 10 days. In October of 2003, the minor exposed himself to a female acquaintance and attempted to force her to orally copulate him. He admitted a charge of felony sexual battery by restraint. (Pen. Code § 243.4, subd. (a).) Prior to his dispositional hearing on the sexual battery charge, the minor was terminated from his placement at the Ambrose Center for failure to complete his court-ordered work program and a week later he failed to appear for a drug test. He failed to appear for his probation violation hearing on December 11, 2003, and a warrant was issued for his arrest. The court sustained the probation violation and continued him in the electronic monitoring program for an additional 45 days. He failed to appear for his appointment with that program and another bench warrant was issued.

On March 9, 2004, the dispositional hearing on the sexual battery charge was finally held; the minor was removed from his home and ordered into placement. He was ultimately placed at the Trinity Whitewater (Trinity) program and ordered to attend sex offender counseling. After two months in that program, his probation officer transferred him to a different program, Breaking the Cycle, as he was receiving limited sex offender counseling at Trinity. The minor ran away from that program less than 24 hours later and remained at large for almost three months. He was then taken into custody and ordered transferred to the Gateway residential program, but he ran away as he was being transported to the program. Another probation violation was filed against him on January 3, 2005; he admitted the violation on February 24, 2005, and was committed to the Youth Authority on March 22, 2005, with direction that he receive sex offender counseling. That disposition is the subject of this appeal.

ii. Discussion

A. Commitment to the Youth Authority Not an Abuse of Discretion.

The minor first contends that his commitment to the Youth Authority was an abuse of discretion as there was insufficient evidence demonstrating that he would likely benefit from the commitment. Basically, his argument is this: he was removed from the Trinity program because of their inadequate sex offender counseling; there was no evidence that he would receive adequate sex offender counseling at the Youth Authority; a minor may not be committed to the Youth Authority solely because he is a â€