Filed 2/3/15 In re N.M. CA4/2

                       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                  DIVISION TWO


In re N.M., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,
                                                                         E060414
         Plaintiff and Respondent,
                                                                         (Super.Ct.No. JDSQ10710)
v.
                                                                         OPINION
N.M.,

         Defendant and Appellant.



         APPEAL from the Superior Court of Inyo County. Dean Stout, Judge. Affirmed

with directions.

         Marilee Marshall, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Peter Quon, Jr., and Anthony Dasilva, Deputy Attorneys General, for Plaintiff and

Respondent.



                                                             1
                                               I

                                      INTRODUCTION

       Defendant N.M. was born in July 1995. In a juvenile wardship petition (Welf. &

Inst. Code, § 656), it was alleged that, when defendant was 14 years old, he committed

eight sexual offenses against his two younger brothers,1 in violation of Penal Code

sections 286, subdivision (b)(1); 288, subdivisions (a) and (b)(1); and 288a, subdivision

(b)(1).2 Defendant admitted guilt to four counts—two for sodomy and two for oral

copulation—against each victim. (§§ 286, subd. (b)(1), and 288a, subd. (b)(1).)

       Eventually, after several different placements, in November 2013, when defendant

was 18 years old, the juvenile court ordered defendant be committed for five years to

DJJ3 and be given precommitment confinement credit for 328 actual days.

       On appeal, defendant challenges his commitment to DJJ and contends he is

entitled to 72 additional days of precommitment confinement credit. The People agree

defendant should receive additional credit but assert defendant’s commitment to DJ J was

proper. We agree with the People and affirm the judgment, as modified, to give

defendant credit for 72 additional days.




       1   The boys are his half-brothers and share the same mother.

       2   All statutory references are to the Penal Code unless stated otherwise.

       3 Department of Corrections and Rehabilitation, Division of Juvenile Justice,
Division of Juvenile Facilities (DJJ).

                                              2
                                             II

                   FACTUAL AND PROCEDURAL BACKGROUND

       The record on this case spans nearly five years between 2009 and 2014, during

which time the court placed defendant in several different programs before ordering him

to be placed with DJJ.

A. First Placement—Success in Recovery

       In December 2009, defendant’s half-brothers, ages seven and 10, told detectives

and their father that defendant made them rub their penises against defendant’s buttocks

and manually and orally copulate defendant until he ejaculated. Defendant sodomized or

tried to sodomize his brothers. Defendant engaged in similar behaviors with his cousins,

ages three and five, in Idaho in 2007 but was never prosecuted.

       Defendant’s mother said defendant had been diagnosed with bipolar disorder and

attention deficit hyperactive disorder (ADHD). Mother’s family had a history of mental

illness in her family and she had been hospitalized as suicidal. Defendant denied he had

been sexually molested in the past but he admitted using alcohol and marijuana. The

probation department recommended that defendant be placed in a residential treatment

program specializing in juvenile sex offenders. The court declared defendant a ward of

the court and removed him from his parents. Defendant was placed in a treatment

program, Success in Recovery, in Visalia.

       In June 2010, it was reported that defendant was adjusting slowly and displayed a

high risk of reoffending. Defendant exhibited anger and anxiety and admitted to having

molested a total of five victims, including his cousins and half-brothers. Defendant later

                                             3
revealed that he had been raped and sodomized by his mother’s neighbor for over a year.

Defendant also disclosed that he had fondled his mother’s breasts and genitals on

numerous occasions when she was passed out from drinking. A September 2010

probation report observed defendant had trouble following basic rules and controlling his

sexual impulses although he had disclosed information about the perpetrator who had

sexually abused him. The court found continued placement was necessary and

appropriate because defendant was making satisfactory progress to the best of his ability.

In December 2010, an application regarding psychotropic medication was granted.

       Between December 2010 and April 2011, defendant made progress, beginning to

take responsibility for his behavior, although he still remained at high risk to reoffend.

Defendant performed well in school, receiving all As and Bs. Defendant continued to

receive psychotropic medication (Zoloft) for anxiety and another medication, Strattera, to

improve concentration.

       Defendant’s progress was erratic between June and September 2011. Defendant

had testified in court against the person who molested him. Defendant’s mother had

brought a boyfriend to court with her while defendant was testifying, causing him to be

upset that she had not maintained confidentiality about his personal life. His obsessive

thinking and distortions were negative and self-destructive but, by September 2011, he

was complying with the rules, was less sexually obsessed, was eliminating predatory

behaviors, and was addressing his feelings more openly. He continued to perform well in

his independent study program.



                                              4
       In December 2011, Success in Recovery reported that defendant had regressed

again, was constantly breaking the rules, and was trying to “sexually groom” staff and

peers. Defendant was placed on a 14-day contract, subject to termination from the

program.

       In January 2012, defendant was officially terminated from the program because he

could not consistently maintain honesty, follow basic rules, or refrain from sexually

grooming others around him. Defendant was described as antisocial, narcissistic, and

unremorseful. Based on defendant’s lack of commitment, his criminality, and his lack of

empathy, it was recommended he be placed in DJJ or a more highly-structured facility.

A probation report called defendant “aggressive and intimidating” and stated he was

“‘playing the game of treatment.’”

B. Second Placement—Quality Group Homes

       In March 2012, defendant was adjusting well in a placement with Quality Group

Homes. He was academically successful and did not present any behavioral issues.

However, he had been discovered smoking twice and had also had a fight with a peer.

The court expressed concern about the placement and the lack of meaningful information.

Defendant’s smoking and marijuana use, pornography addiction, excessive horseplay and

fighting, profanity, and inappropriate sexual comments were all problems. Defendant’s

general progress had been minimal; he violated rules, acted out sexually, and manipulated

others. Defendant’s medication was changed in May 2012.




                                             5
       In June 2012, defendant had shown an inability to cope with the structure of the

program, had gone AWOL on several occasions, and had been found in possession of

drugs. The court expressed its continuing concerns with defendant’s placement.

       On June 27, 2012, the court issued an order for arrest after defendant left the

grounds of the group home and had not returned. A juvenile wardship petition alleged

that defendant had violated conditions of his probation by failing to participate in

individual group or family counseling, by failing to obey the rules and regulations of his

group home and the directives of his probation officer, and by using or possessing an

illegal or intoxicating substance. Defendant was ordered detained. Defendant told the

probation officer that he had run away because he was tired of fighting and his

possessions being stolen. The staff did not respond to him and he did not believe he was

benefitting from the counseling; he needed a more therapeutic setting.

       On July 6, 2012, defendant was placed in the Inyo County Juvenile Detention

Center. A termination notice from Quality Group Homes reported that defendant’s

probation was violated and his placement was terminated. However, a second letter was

sent to probation recommending that he be returned to Quality Group Homes. The letter

comments on defendant “putting genuine effort into our sexual offender curriculum,”

“tak[ing] responsibility for his past sexual misconduct,” being “forthcoming” about

personal issues, and “beginning to acknowledge his problematic involvement with

pornography” and substance abuse. Defendant had been “acting out” because new

residents had affected his behavior.



                                             6
C. Third Placement—Mathiot Residential Treatment Center

       The probation officer recommended that defendant be placed at Mathiot

Residential Treatment Center for “sexually at-risk adolescent males.” The court warned

defendant that he needed to take the program seriously or he would be placed with DJJ.

Defendant signed new terms and conditions.

       Mathiot Group Homes reported in October 2012 that defendant was having

behavioral problems, including defiance of rules, sexualized talk with peers, sexually

explicit entries in his journal, and physical contact with girls at school. In December

2012, defendant was having suicidal ideations; he was depressed and found in possession

of marijuana and pornography. In January 2013, a new medication was added for

ADHD.

       On January 29, 2013, a juvenile wardship petition was filed alleging that

defendant had violated probation conditions by failing to obey school rules and

regulations and by possessing or being under the influence of an illegal or intoxicating

drug. Defendant admitted the allegations and was ordered to serve 14 days in juvenile

hall and then be released back to Mathiot Group Homes.

       In March 2013, defendant’s status was described as “an inconsistent engagement

in treatment with periods of instability including involvement with substance abuse,

shoplifting, suicidal ideation, self-mutilation, AWOL, and unauthorized community

contact.” He was hospitalized for a panic attack after a romantic disappointment. He

was failing school. In April 2013, his medications for depression and anxiety were

changed.

                                             7
       In May 2013, defendant left his placement for three nights and he violated

probation conditions by failing to complete the juvenile sex offender program, by failing

to be in his residence between 8:00 p.m. and 6:00 a.m., and by using or possessing

amphetamine. Defendant admitted using marijuana and getting into an altercation at the

park. He felt he had benefitted from sex offender treatment but that he needed treatment

for other behaviors, including drug use and anger.

D. Commitment to DJJ

       Defendant’s placement at Mathiot was terminated and defendant was detained in

Inyo County Juvenile Center. The discharge summary from Mathiot Group Homes

reported that, during defendant’s final week, he repeatedly went AWOL for extended

periods of time, engaged in marijuana and tobacco use, and was physically violent in the

community.

       In August 2013, another notice of probation violation was filed, noting that

defendant possessed pornographic materials and had violated the detention rules.

Defendant had made multiple threats and attempts to commit suicide.

       Defendant graduated from high school in September 2013. In October 2013,

defendant submitted a letter to the court, stating that he had learned a lot about his sexual

offense and his own victimization. He hated himself for the effect that he had on the

victims and on his family and he wanted to go to college and help his family. He also

planned to stay out of trouble and continue counseling. A therapist submitted a letter in

support for defendant, including information about possible placements.



                                              8
       On November 7, 2013, the probation officer filed a disposition report. The

probation officer stated that defendant’s needs would best be served by the “intensive,

structured, and secured programming” available through DJJ. It further commented that,

as defendant’s offenses were committed before the age of majority, it was not appropriate

to place him in a treatment program designed for adults. The availability of placement

options in the form of a group home/residential treatment was virtually nonexistent.

       At the disposition hearing on November 22, 2013, the court took judicial notice of

the entire court file and stated that it had read and considered the probation officer’s

disposition hearing report. Defense counsel submitted Doctor Minagawa’s report.

Defendant’s therapist testified she had noticed considerable and dramatic changes in

defendant since she had first met him at age 14. Defendant was more mature, admitted

what he had done, felt remorse, and was able to talk about his feelings and thoughts

surrounding his actions and his own victimization. He was also able to ask for help.

       Defendant’s grandparents had informed probation that they were no longer able to

provide a home for defendant. The court planned to follow probation’s recommendation

and place defendant with DJJ because the court was not convinced there was a viable

alternative. Therefore, the court ordered that defendant be committed to the DJJ for a

term of five years. Defendant was awarded precommitment confinement credits for 328

actual days. Defendant was required to register as a sex offender under section 290.

       On January 15, 2014, the probation department sent a memorandum to the court,

noting that DJJ would be accepting defendant, despite its initial indications that it would

be rejecting the case. On January 30, 2014, the court had received correspondence from

                                              9
DJJ indicating that defendant had been accepted but he had not yet been transferred. In

view of the delay and the uncertainty of an alternative program, defense counsel asked

the court to reconsider its order. The court questioned whether it had jurisdiction, given

that an appeal had been filed and it did not have sufficient information or an appropriate

motion for reconsideration. Therefore, the court denied the oral request, without

prejudice. Defendant was transferred to DJJ and arrived on February 3, 2014.

                                             III

                             EX POST FACTO PRINCIPLES

       Defendant argues the juvenile court’s commitment of defendant to DJJ, based on

the 2012 amendments of Welfare and Institutions Code sections 731 and 733 was an ex

post facto application of the law because his offenses were committed in 2009 before the

statutes were amended to include his crimes.

       Defendant acknowledges the same arguments he asserts here have already been

rejected in two appellate cases. In In re Edward C. (2014) 223 Cal.App.4th 813, 823, the

First Appellate District, Division Five, noted that Welfare and Institutions Code section

731, subdivision (a)(4), as enacted in 2007, purported to authorize DJJ commitments for

youthful sex offenders only when the minor had committed an offense listed in Welfare

and Institutions Code section 707, subdivision (b). The court further noted that while

Welfare and Institutions Code section 707, subdivision (b), lists 30 serious and violent

crimes, including many forcible sex offenses, it does not include a number of nonforcible

sex offenses that are listed in section 290.008, subdivision (c), as referenced in Welfare

and Institutions Code section 733, subdivision (c). (Edward C., at p. 823.) The Edward

                                             10
court found the Legislature enacted Assembly Bill No. 324 (2011–2012 Reg. Sess.) to

amend Welfare and Institutions Code section 731, subdivision (a)(4), to authorize a DJJ

commitment when the ward “‘has committed an offense described in subdivision (b) of

Section 707 or subdivision (c) of Section 290.008 of the Penal Code, and is not otherwise

ineligible for commitment to the division under Section 733.’” (Edward C., at p. 824,

citing Stats. 2012, ch. 7, § 1.) The court noted that the amendment clarified that a DJJ

commitment is authorized for a ward who committed a sex offense listed in section

290.008, subdivision (c), even if the offense was not also listed in section 707,

subdivision (b). (Edward C., at p. 824.)

       The Edward C. minor argued that in committing him to DJJ, the juvenile court

retroactively applied the 2012 amendment to section 731, subdivision (a)(4) , and inflicted

a greater punishment than was available when he committed his offenses of continuous

sexual abuse of a child in 2008 and 2009. (In re Edward C., supra, 223 Cal.App.4th at

pp. 818, 825.) The court found there was no ex post facto problem because a DJJ

commitment does not constitute greater punishment than the local commitments that

were available when the minor committed the offenses. (Id. at p. 825.) The court

rejected the argument that, because a juvenile committed to DJJ for a sex offense

enumerated in section 290.008 must register as a sex offender upon release, whereas

wards placed locally for the same sex offenses are not required to register, a commitment

operated to increase punishment. (Id. at p. 827.) In In re K.J. (2014) 224 Cal.App.4th

1194, 1202-1211, the First Appellate District, Division Three, also concluded that the



                                             11
legislature intended Assembly Bill 324 to be retroactive and that it did not violate ex post

facto principles.

       Here defendant argues Edward C. and K.J. were wrongly decided and he seeks to

preserve this issue for further review, especially whether the discretionary imposition of

lifetime sex offender registration (§ 3003.5, subd. (b)) increases the “penalty” for the

offense within the meaning of Apprendi v. New Jersey (2000) 530 U.S. 466, an issue

which is currently pending in the California Supreme Court in People v. Mosley,

S187965. We agree with the analysis in Edward C. and K.J. and reject the ex post facto

argument attempted here.

                                              IV

                                 ABUSE OF DISCRETION

       The juvenile court found there were no programs suitable for placement of

defendant and it had no option other than to commit defendant to DJJ. Defendant

maintains the court’s conclusion was wrong and its decision was an abuse of discretion:

“An appellate court will not lightly substitute its decision for that rendered by the juvenile

court. We must indulge all reasonable inferences to support the decision of the juvenile

court and will not disturb its findings when there is substantial evidence to support them.

[Citation.] In determining whether there was substantial evidence to support the

commitment, we must examine the record presented at the disposition hearing in light of

the purpose of the Juvenile Court Law.” (In re Michael D. (1987) 188 Cal.App.3d 1392,

1395; People v. Giminez (1975) 14 Cal.3d 68, 72.) Because commitments to DJJ cannot

be based solely on retribution grounds (Welf. & Inst. Code, § 202, subd. (e)(5)), there

                                             12
must be evidence demonstrating (1) probable benefit to the minor and (2) that less

restrictive alternatives are ineffective or inappropriate. (Michael D., at p. 1396.)

       During the disposition hearing, defendant’s counsel argued defendant’s original

offenses happened when defendant was much younger and that defendant was himself a

victim of neglect and sexual abuse with a history of mental illness. Defendant’s failure in

three placements was understandable. In his first placement, he was disturbed after

having to testify about being abused. In his second placement, the group home ultimately

asked the court to let him stay in the program. In spite of his misconduct in the third

placement—possessing pornography, shoplifting, and going AWOL—defendant did not

commit any additional sexual offenses. Counsel contended there were many alternatives

and defendant would not simply be turned loose into the community. She asserted the

recommendation for DJJ was the most restrictive and least appropriate alternative

because DJJ is for severe offenders and its inmates are “hardened.”

       The district attorney agreed that defendant needed a great deal of support,

comprehensive care, psychiatric and substance abuse monitoring, and an effective sex

offender treatment program. The district attorney did not perceive any legitimate option

other than DJJ.

       Defendant addressed the court, taking responsibility for his actions and for missing

past opportunities. He claimed that, because his offenses were four years old, he honestly

felt that he had changed and would not reoffend.

       The probation report explained that, because defendant had been abused himself,

he thought sexual behavior between boys was acceptable which was why he approached

                                             13
his younger cousins in Idaho. In addition, when he was 12 years old, he was raped and

sodomized by his mother’s friend for over a year.

       The court stated that defendant was a victim himself and the court respected and

appreciated his acceptance of accountability and responsibility. The court however, was

not convinced there was a viable alternative to DJJ because there were mental health,

behavioral health, substance abuse needs, and sexual offender components. The court

had reviewed the materials from DJJ and was satisfied that defendant’s needs would be

met best through its services. Therefore, the court ordered defendant be committed to

DJJ.

       On appeal, defendant argues the trial court abused its discretion because there was

no guarantee that defendant would be accepted into DJJ programs or that they would

continue to exist, given budgetary problems and reductions. Defendant asserts there was

evidence of less restrictive alternatives, such as a residential drug treatment program with

a comprehensive care program and outpatient sex offender treatment; continuing at

juvenile hall where he was making progress; or even housing at a DJJ facility

without a DJJ commitment and no requirement to register as a sex offender. (In re

Edward C., supra, 223 Cal.App.4th at pp. 826-827, citing In re Robert M. (2013) 215

Cal.App.4th 1178, 1182-1183.)

       Welfare and Institutions Code section 734 states, that the court must be satisfied,

that it must be “probable” that the ward will benefit from the treatment provided by the

DJJ. Section 734 states in relevant part: “No ward of the juvenile court shall be

committed to the Youth Authority unless the judge of the court is fully satisfied that the

                                             14
mental and physical condition and qualifications of the ward are such as to render it

probable that he will be benefitted by the reformatory educational discipline or other

treatment provided by the Youth Authority.” Therefore, defendant urges it was reversible

error to commit defendant to DJJ for the sole reason that suitable alternatives did not

exist. (In re Aline D. (1975) 14 Cal.3d 557, superseded by statute on other grounds as

stated in In re Luisa Z. (2000) 78 Cal.App.4th 978.)

       In In re Aline D., supra, 14 Cal.3d 557, Aline was expelled from four placements

because of behavior, including gang association, shoplifting, marijuana use, and refusal

to attend school. The only remaining home would not accept her because of her past

“assaultive behavior.” (Id. at p. 560.) At the placement hearing, seven placements were

deemed unsuitable and one was specifically not suitable because it was not a locked

facility. (Id. at p. 561.) Two psychiatrists and one psychologist recommended that Aline

not be committed to Youth Authority (YA). The juvenile court referee stated that Aline

could not simply be left in juvenile hall because that was a detention facility. The referee

committed Aline to YA because it was the only alternative other than setting her free and

she would probably benefit from YA commitment. (Id. at pp. 561-562.) The Supreme

Court reversed the commitment order, stating: “[A] CYA commitment may not be made

for the sole reason that suitable alternatives do not exist.” (Id. at p. 562.) As part of its

decision, the Supreme Court relied on the former premise that a YA commitment was

solely for rehabilitation and not punishment. (Id. at p. 567.)

       This case, however is not like Aline D. because she was a mentally impaired

individual unsuitable for YA commitment. Although defendant appears to be extremely

                                              15
troubled, his placements failed because he was defiant and uncooperative. Furthermore,

the juvenile court positively concluded that DJJ commitment would provide the

structured environment for treating his substance abuse and sexual deviancy. The

juvenile court did not commit an abuse of discretion.

                                             V

                   PRECOMMITTMENT CONFINEMENT CREDITS

       Defendant was given 328 days of precommitment confinement credit. According

to the probation report, defendant served: 109 days between January 29, 2010, and May

17, 2010; 33 days between July 1, 2012, and August 2, 2012; and 186 days between May

21, 2013, and November 22, 2013, for a total of 328 days. Defendant was not actually

transferred from the Inyo County Juvenile Center to DJJ until February 3, 2014.

Therefore, defendant is entitled to 72 additional days of credits from November 22, 2013

until February 2, 2014, for a total of 400 actual days of credit. (In re Eric J. (1979) 25

Cal.3d 522, 536.) The People agree. The appellate court may correct the calculation

error without a remand to the juvenile court. (In re Antwon R. (2001) 87 Cal.App.4th

348, 353.)

                                             VI

                                       DISPOSITION

       We affirm defendant’s commitment to DJJ. We direct the juvenile court to

prepare an amended commitment order providing that defendant is entitled to an




                                             16
additional 72 days of precommitment confinement credit. The amended order shall be

forwarded to DJJ.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                           CODRINGTON
                                                                                     J.

We concur:


HOLLENHORST
          Acting P. J.


KING
                        J.




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