F060918 Super. Ct. No. 08CEJ600458-1B
R. Randall Riccardo, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule
APPEAL from an order of the Superior Court of Fresno County. Alvin M. Harrell III and Brian M. Arax, Judges.
R. Randall Riccardo, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
A Welfare and Institutions Code section 602 petition was filed against appellant Phillip S. alleging he had violated Penal Code section 261, subdivision (a)(4), rape by intoxication. Phillip admitted the allegation in the petition. The juvenile court committed Phillip to the Division of Juvenile Justice (DJJ) for a period of up to four years.
All further statutory references are to the Penal Code unless otherwise stated.
Phillip contends his admission was not knowing and intelligent because the juvenile court failed to advise him of a right to a jury trial on the residency restrictions set forth in section 3003.5, subdivision (b). He also claims the juvenile court abused its discretion by failing to (1) grant deferred entry of judgment and make the necessary findings when denying deferred entry of judgment, and (2) consider less restrictive placements.
We will affirm the order.
FACTUAL AND PROCEDURAL SUMMARY
About two months before his 18th birthday, Phillip and three other minors, one boy and two girls, were drinking alcohol in a vacant apartment. One of the minors was a 13-year-old girl, the victim. The victim had passed out or fallen asleep on the bathroom floor. The other girl attempted to awaken the victim by splashing water on her face, but was unsuccessful.
Phillip dragged the unconscious victim into another room and told the other minors to leave because he was going to have sex with the victim. The other two minors watched Phillip remove the victim's underwear and insert his penis into her vagina. The other male minor told Phillip to stop; Phillip did not.
On January 26, 2010, the Fresno County District Attorney filed a petition alleging Phillip came within section 602 of the Welfare and Institutions Code on the basis that Phillip had violated Penal Code section 261, subdivision (a)(4). On February 11, 2010, Phillip admitted the allegation. The juvenile court advised Phillip of his rights and of the consequences of his admission before accepting the admission, except there was no mention of section 290 registration.
On March 12, 2010, Phillip withdrew his admission. On June 1, 2010, Phillip again admitted to the allegation of the petition. Prior to accepting the admission, the juvenile court informed Phillip of his rights, including the right to a trial before the court, not a jury. The juvenile court also told Phillip:
"[G]iven the nature of this charge, you will have to register as an offender, as a sex offender, and be tracked accordingly for a limited duration of time, perhaps as long as you live."
After notifying Phillip of the lifetime registration requirement as a sex offender, the juvenile court asked Phillip if he understood the requirement, and Phillip said yes. The juvenile court then asked Phillip if the sex offender registration requirement caused Phillip to reconsider admitting the allegation; Phillip indicated it did not cause him to change his mind. After this exchange, the juvenile court found Phillip had been advised of the consequences of his admission.
At the initial disposition hearing on July 6, 2010, the juvenile court stated it had reviewed the psychological report prepared on Phillip and the probation report. The victim and her mother were present and gave statements regarding the impact Phillip's conduct had had on their lives. Counsel and the juvenile court proceeded to discuss the various factors to consider when placing Phillip. The juvenile court opined that with the gravity of the offense, Phillip's unresolved alcohol and drug issues, and the psychological report, the appropriate placement appeared to be commitment to DJJ. The juvenile court had some questions as to why Phillip had been classified as a moderate risk to reoffend and what other placements were available, so the disposition hearing was continued in order to obtain further information.
At the continued disposition hearing on August 3, 2010, the juvenile court stated it had received and reviewed the probation report, an addendum to the probation report, and additional information the juvenile court had sought at the July 6 hearing. Phillip's counsel argued that Phillip should receive probation, despite three prior nonsexual offenses, because he had been housed in juvenile hall for 196 days at that point without disciplinary issues.
The juvenile court noted that the comprehensive programs for treatment of alcohol and substance abuse, which were less restrictive than those of DJJ, did not accept people of Phillip's age and he was ineligible for commitment to those programs. The only available local program would be a commitment to the Juvenile Justice Campus. None of the less restrictive programs offered any sex offender treatment.
DJJ offered substance abuse and sex offender treatment programs. The DJJ commitment also offered assistance with completing a high school diploma, vocational training, and training on the section 290 registration requirements. Phillip would be required to complete substance abuse and sex offender treatment programs in order to be eligible for parole.
The juvenile court opined that a juvenile sex offender with a substance abuse problem needed to be in a custodial setting until after treatment was complete. If Phillip completed the treatment programs, he would be eligible for parole in approximately two years seven months.
After weighing all the information and the factors, and considering that Phillip was almost an adult when he committed the offense, the juvenile court ordered Phillip committed to DJJ for a maximum period of confinement of four years. The juvenile court found that less restrictive placements would be ineffective, DJJ placement would hold Phillip accountable for his actions, would provide for the protection and safety of the public, and the various DJJ programs would provide a rehabilitative benefit to Phillip. Upon release from DJJ, Phillip was ordered to register pursuant to section 290.008, subdivision (c)(2).
Phillip contends his admission was not knowing and voluntary because he was not informed (1) he had a right to a jury trial, and (2) of the direct consequence of his admission, specifically the punitive residency restrictions in section 3003.5, subdivision (b). Phillip also maintains the juvenile court abused its discretion by denying deferred entry of judgment and then failing to make the necessary findings when denying a deferred entry of judgment. Lastly, he argues the juvenile court abused its discretion in ordering a DJJ placement instead of less restrictive placements.
I. Admission of Allegation in Petition
In support of his contentions that he should have been afforded a jury trial on the underlying sexual offense and that the residency restriction was punitive, Phillip relies primarily upon In re J.L., previously published at 190 Cal.App.4th 1395. On March 2, 2011, shortly after Phillip's opening brief on appeal was filed, the California Supreme Court granted the People's petition for review of In re J.L., S189721, and ordered the case depublished. Consequently, In re J.L. may not be cited.
It is well settled under both federal and California law that juveniles are not entitled to a trial by jury. (McKeiver v. Pennsylvania (1971) 403 U.S. 528, 545 (plur. opn. of Blackmun, J.); id. at p. 551 (conc. opn. of White, J.); People v. Nguyen (2009) 46 Cal.4th 1007, 1023; Alfredo A. v. Superior Court (1994) 6 Cal.4th 1212, 1225.) Also, the California Supreme Court has held that lifetime registration as a sex offender does not constitute punishment. (In re Alva (2004) 33 Cal.4th 254, 266.) As the court stated in Alva, sex offender registration "is not punishment, but a legitimate, nonpunitive regulatory measure." (Id. at p. 280.) Thus, Phillip's claim that the juvenile court should have notified him of his right to a jury trial prior to accepting his admission because of the punitive consequences of the registration requirements fails.
Phillip also claims he was not informed of the consequences of his admission because the trial court did not specifically advise him of the residency restrictions set forth in section 3003.5, subdivision (b) and, had he been so informed, he would not have admitted the allegation. Phillip, however, was informed that as a consequence of his admission, he would be subject to lifetime registration as a sex offender pursuant to section 290. Phillip contends this advisement was insufficient and cites People v. Zaidi (2007) 147 Cal.App.4th 1470 (Zaidi)as support for this contention.
In Zaidi, the appellate court held that a defendant must be informed that registration as a sex offender is a lifelong requirement. (Zaidi, supra, 147 Cal.App.4th at p. 1481.) The Zaidi court concluded that it is insufficient for a trial court to advise a defendant that he or she will be subject to registration pursuant to section 290; the advisement must specify that registration is a lifetime requirement. (Zaidi, at p. 1481.)
Here, Phillip was so advised by the juvenile court and also was asked if he wished to withdraw his admission in light of the lifetime registration requirement; Phillip said no.
Phillip's contention that the juvenile court needed to advise him of the specific restrictions on where he could reside upon release is unsupported by any case law. Restrictions on where a sex offender may reside upon release have been in effect since at least 1998 (Stats. 1998, ch. 550, § 2, enacting § 3003.5), yet no case of which we are aware, and Phillip has cited none, has held that a trial court or juvenile court must articulate for the record the specific residency restrictions. Such a requirement would be unduly burdensome and unreasonable. Section 3003.5, subdivision (c) allows municipalities to enact residency restrictions on sex offenders in addition to those already set forth in state statutes. The myriad restrictions that may be in effect could differ depending on where a defendant or juvenile eventually resides while on parole.
Furthermore, a defendant is not entitled to relief from a trial court's misadvisement of registration as a sex offender unless the defendant establishes that he or she was prejudiced by the misadvisement. (People v. McClellan (1993) 6 Cal.4th 367, 378 (McClellan); In re Moser (1993) 6 Cal.4th 342, 352 [failure to advise or misadvisement of direct consequences of a guilty plea reversible error if "the defendant establishes that he or she was prejudiced by the misadvisement, i.e., that the defendant would not have entered the plea of guilty had the trial court [or defense counsel] given a proper advisement"].)
Phillip must therefore demonstrate that he would not have admitted the allegation of the petition if the trial court had given a proper advisement. (McClellan, supra, 6 Cal.4th at p. 378.) A defendant's bare assertion, without other support on the record that he would not have entered into the plea bargain if he had been properly advised, is not enough to establish prejudice. (Ibid.)
There is nothing in the record, other than a bare assertion in Phillip's brief, indicating that he would not have admitted the allegation if he had known of the residency restrictions. This bare assertion is insufficient to establish prejudice. (McClellan, supra, 6 Cal.4th at p. 378.) We find this particularly true where, as here, Phillip (1) was represented by counsel at all times, who presumably discussed with Phillip the consequences of admitting the allegation of the petition, (2) initially withdrew his admission and then entered a new admission at a second disposition hearing, and (3) affirmatively indicated he did not wish to withdraw his admission, even if it meant lifetime registration as a sex offender.
II. Denial of Deferred Entry of Judgment
Phillip argues the juvenile court abused its discretion in denying deferred entry of judgment. The deferred entry of judgment procedure allows a minor to admit the allegations of a petition and to complete a period of probation, including participation in programs designated by the juvenile court. (Welf. & Inst. Code, § 794.) If the minor successfully completes the probation, the charges against the minor are dropped and the record is sealed. (Id., § 793, subd. (c).) The first step in the procedure requires the prosecutor to evaluate the minor and determine if the minor is eligible for deferred entry of judgment pursuant to the conditions established in Welfare and Institutions Code section 790, subdivision (a). After performing the evaluation, the prosecutor is required to file a declaration if the minor is found eligible. (Id., subd. (b).) The juvenile court is then required to determine if the minor is suitable for deferred entry of judgment. (Ibid.)
Phillip was afforded an opportunity to enter the deferred entry of judgment program after the prosecutor made the determination that Phillip met the minimum eligibility qualifications. The probation department submitted a report indicating Phillip was not a suitable candidate for deferred entry of judgment "for protection of the community." The probation officer cited the nature of Phillip's crime, that Phillip was on probation at the time of the offense, Phillip's substance abuse and the failure to respond to or avail himself of substance abuse counseling through the drug court, and Phillip's failure to heed pleas from witnesses asking him to stop raping the unconscious victim. The probation officer opined that Phillip needed inpatient substance abuse treatment as he had not responded to outpatient treatment. The report further stated that a custodial commitment was needed "for accountability purposes."
Phillip claims the probation report was "deficient" in that it failed to address and analyze the deferred entry of judgment suitability adequately. Other than stating he disagreed with the recommendation, Phillip did not object to the probation report. Phillip's claim that the probation report was deficient is made for the first time on appeal and is forfeited. (People v. Welch (1993) 5 Cal.4th 228, 234 (Welch).)
At the suitability hearing, the juvenile court stated it had reviewed the probation report, including its recommendation and reasons for opposing deferred entry of judgment, and agreed with the recommendation and found Phillip unsuitable for deferred entry of judgment.
A minor who meets the statutory criteria for eligibility is not automatically entitled to deferred entry of judgment. (In re Luis B. (2006) 142 Cal.App.4th 1117, 1123.) Deferred entry of judgment is designed for first-time, nonviolent, and less serious juvenile offenders. (Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 561.)
The determination to grant deferred entry of judgment is subject to the discretion of the juvenile court. (In re Sergio R. (2003) 106 Cal. App.4th 597, 604-605, 607.) This was not Phillip's first offense; his offense was a serious felony and violent; he continued to abuse alcohol and drugs while participating in the juvenile drug court program; he would require treatment as a sex offender and inpatient treatment for substance abuse; and his age made him ineligible for locally available programs. For all these reasons, the juvenile court did not abuse its discretion in denying deferred entry of judgment.
Phillip also contends the juvenile court failed to make the necessary findings when it denied deferred entry of judgment. Welfare and Institutions Code section 790, subdivision (b) requires the juvenile court to make findings on the record that deferred entry of judgment is appropriate when deferred entry of judgment is granted;nothing is set forth requiring findings on the record for a denial.
Regardless of any statutory requirements, the juvenile court did make findings by adopting the rationale and recommendation set forth in the probation report and stating this on the record at the hearing. Thus, this argument fails.
III. Placement at DJJ
Phillip contends the juvenile court "improperly" committed him to DJJ "based solely on the circumstances of his offense and the unavailability of any other program other than DJJ." "In reviewing a juvenile court's disposition -- whether it be a commitment to the California Youth Authority or a disposition of a less serious nature -- the appellate court must indulge in all reasonable inferences from the evidence and the record to support the action of the juvenile court. [Citations.] An order of disposition, made by the juvenile court, may be reversed by the appellate court only upon a showing of an abuse of discretion. [Citations.]" (In re Darryl T. (1978) 81 Cal.App.3d 874, 877.) A juvenile court does not abuse its discretion where its dispositional order is supported by substantial evidence. (Cf. In re Lorenza M. (1989) 212 Cal.App.3d 49, 53 (Lorenza M.)[youth authority commitment].)
In determining whether a particular disposition was within the juvenile court's discretion, we must examine the record in light of the purposes of the law governing delinquency adjudications. (Welf. & Inst. Code, § 200 et seq.; Lorenza M., supra, 212 Cal.App.3d at p. 53.) Accordingly, we look to Welfare and Institutions Code section 202, which provides, in relevant part, as follows:
"(a) The purpose of this chapter is to provide for the protection and safety of the public and each minor under the jurisdiction of the juvenile court and to preserve and strengthen the minor's family ties whenever possible, removing the minor from the custody of his or her parents only when necessary for his or her welfare or for the safety and protection of the public.... If the minor is removed from his or her own family, it is the purpose of this chapter to secure for the minor custody, care, and discipline as nearly as possible equivalent to that which should have been given by his or her parents. This chapter shall be liberally construed to carry out these purposes.The portion of Welfare and Institutions Code section 202, subdivision (b) quoted above means that "when we assess the record in light of the purposes of the Juvenile Court Law [citation], we evaluate the exercise of discretion with punishment and public safety and protection in mind." (Lorenza M., supra, 212 Cal.App.3d at p. 58; accord, In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684 ["A fundamental premise of delinquency adjudication is that the court must focus on the dual concerns of the best interests of the minor and public protection"]; see also In re Asean D. (1993) 14 Cal.App.4th 467, 473 ["the 1984 amendments to the juvenile court law reflected an increased emphasis on punishment as a tool of rehabilitation, and a concern for the safety of the public"].) While the juvenile court law contemplates a progressively restrictive and punitive series of dispositions, there is no absolute rule that the juvenile court may not impose a particular commitment until less restrictive placements have been attempted. (In re Teofilio A. (1989) 210 Cal.App.3d 571, 577.)
"(b) ... Minors under the jurisdiction of the juvenile court as a consequence of delinquent conduct shall, in conformity with the interests of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. This guidance may include punishment that is consistent with the rehabilitative objectives of this chapter."
Here, Phillip again complains about alleged deficiencies in the probation report, including the probation report's "overwhelming emphasis" that he should be punished for his actions and the failure seriously to consider options other than DJJ. Phillip did not raise any objection to the probation report in the juvenile court proceedings; therefore, the issue is forfeited on appeal. (Welch, supra, 5 Cal.4th at p. 234; In re Christopher S. (1992) 10 Cal.App.4th 1337, 1344.)
Regardless, Phillip's claim that the juvenile court abused its discretion by failing to consider less restrictive placements fails on the merits. The disposition hearing was continued by the juvenile court in order to obtain more information as to "why we can't give [Phillip] the help he needs in the less restrictive environment." Contrary to Phillip's contention, the probation report discussed other placements but found them to be unsuitable due to Phillip's age, the gravity of his offense, and the level of supervision available.
The addendum to the probation report, prepared in response to the juvenile court's request, stated that Phillip was rejected for placement at the Juvenile Justice Campus because of the gravity of his offense and the need for a "higher level of supervision than what can be provided at the local level." The addendum also stated that Phillip was not eligible for placement in the New Horizons program because of the gravity of his offense and his age.
The juvenile court thoroughly considered the probation report, continued the disposition hearing for further information on local placement options, and considered the addendum to the probation report. In addition to the statements regarding other placements, the probation report also noted Phillip's history of committing offenses. Phillip's prior offenses included vandalizing school property and a bus bench and being intoxicated while at school.
Phillip was on probation at the time of the current offense. He had been participating in the drug court program where he received substance abuse counseling, but he was intoxicated at the time he committed the current offense, had previously been found in an intoxicated state, and had twice tested positive for marijuana. Phillip admitted continuing to use alcohol and marijuana, despite his participation in the drug court program, and blamed his conduct on alcohol. In determining a disposition in delinquency proceedings, a juvenile's delinquent history should be considered. (In re Jonathan T. (2008) 166 Cal.App.4th 474, 484-485.)
The circumstances of the current offense were particularly egregious: (1) Phillip was two months shy of becoming an adult at the time he committed the current offense; (2) despite months of substance abuse counseling, Phillip was intoxicated; (3) the 13-year-old victim was unconscious at the time Phillip raped her; and (4) Phillip ignored pleas from witnesses telling him to stop. Phillip's psychological evaluation showed him as a moderate risk to reoffend. Welfare and Institutions Code section 725.5 provides that "the circumstances and gravity of the offense committed by the minor" are factors to consider in determining appropriate disposition.
Under these circumstances, the juvenile court did not abuse its discretion in ordering Phillip placed at DJJ. Phillip's history of offenses, the nature of the current offense, his failure to refrain from substance abuse despite counseling, his committing the current offense while on probation, and the stated reasons why local placements were inappropriate all support the juvenile court's exercise of discretion to place Phillip at DJJ. On this record, the juvenile court reasonably could have concluded that a less restrictive disposition would not be adequate to discourage Phillip's drug and alcohol use, address Phillip's need for counseling as a sex offender, and hold Phillip accountable for his actions. (In re M.S. (2009) 174 Cal.App.4th 1241, 1251.)
The juvenile court's disposition order is affirmed.
CORNELL, J. WE CONCUR: LEVY, Acting P.J. FRANSON, J.