In re Daniel C.

Filed 11/4/11 In re Daniel C. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re DANIEL C., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
DANIEL C.,
Defendant and Appellant.
F060916
(Super. Ct. No. JJD060401)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Valeriano
Saucedo, Judge.
Robert McLaughlin, 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, Catherine Chatman and A. Kay
Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

-- 1 of 14 --

2.
Following a contested hearing, Daniel C. (appellant) was committed to the
Department of Juvenile Justice (DJJ)1 for a maximum confinement time of nine years
five months. On appeal, he contends the juvenile court both violated its authority and
abused its discretion in committing him to the DJJ. He also contends that the juvenile
court abused its discretion in setting his term of confinement. We disagree and affirm.
FACTUAL AND PROCEDURAL HISTORY
On December 27, 2005, appellant‟s mother called the police because appellant
struck her while she was holding her three-year-old daughter. Appellant‟s mother told
the officer that appellant had been violent with family members before, that he had been
making threats of violence towards them, and that she could no longer control him. In a
subsequent interview, appellant said he was upset with his mother over a sexual
relationship she was having with one of his friends. He acknowledged pushing her aside,
but he did not recall her holding his sister at the time as he had “blacked out.”
A juvenile wardship petition filed in response to the incident alleged that
appellant, who was then 14 years old, came within the jurisdiction of the juvenile court
for committing a misdemeanor battery against his mother. (Welf. & Inst. Code, § 602;2
Pen. Code, § 242.) Appellant, pursuant to an agreement with the district attorney,
admitted a misdemeanor violation of disturbing the peace (Pen. Code, § 415) and was
adjudged a ward of the juvenile court. Disposition was to take place on February 14,
2006, but was continued in light of a new offense committed by appellant.
Several days earlier, on February 10, 2006, appellant was called to the principal‟s
office of his junior high school where he admitted he had brought a knife and marijuana
1The California Youth Authority (CYA) was renamed California Department of
Corrections and Rehabilitation, Juvenile Justice, effective July 1, 2005. The division of Juvenile
Facilities (DJF) is part of the Division of Juvenile Justice (DJJ). (Gov. Code, §§ 12838, 12838.3,
12838.5, 12838.13.) In this opinion, we use the term DJJ whenever reference to the DJJ or DJF
is appropriate.
2All statutory references are to the Welfare and Institutions Code unless otherwise stated.

-- 2 of 14 --

3.
with him to school. Appellant also had a small pipe in his pocket and two razor blades
and two pornographic magazines in his backpack. Appellant stated that he usually
carried a knife and that he had taken the marijuana from his brother.
On February 15, 2006, a second juvenile wardship petition was filed alleging that
appellant brought a knife and marijuana onto school property, a felony and misdemeanor,
respectively (Pen. Code, § 626.10, subd. (a); Health & Saf. Code, § 11357, subd. (e)).
Appellant admitted the allegations in exchange for deferred entry of judgment, and the
matter was set for disposition. But before disposition could take place, a third juvenile
petition was filed.
The third juvenile wardship petition, filed April 20, 2006, alleged that, between
January 1, 2005, and December 25, 2005, appellant sodomized his then seven-year-old
sister by use of force or violence (Pen. Code, § 286, subd. (c)) and committed lewd acts
upon her (id., § 288, subd. (a)). According to appellant, on one occasion in 2005, he was
interrupted by his mother‟s presence as he pulled down his sister‟s underpants and
attempted to insert his penis into her anus. He did so because he was mad at her. In
another incident, appellant came up behind his sister, grabbed her and placed her on the
ground, put his penis in her “butt,” and “kept going,” moving his penis “back and forth”
for two to three minutes. And on another occasion, this time at his uncle‟s home,
appellant tried to insert his penis into his sister‟s anus and she told him it hurt and began
to cry. Appellant acknowledged that what he was doing was wrong, but stated he was
“„mad‟” and taking “„matters into his own hands.‟”
On June 28, 2006, appellant admitted to one felony count of sodomy without force
or fear (Pen. Code, § 286, subd. (a)), and one count of committing a lewd act upon his
sister (id., § 288, subd. (a)). The juvenile court continued appellant as a ward of the court
and found his maximum confinement exposure to be nine years five months on the three
petitions combined as follows: 30 days for the misdemeanor battery, eight months for the
felony weapon on the school grounds charge; eight months for the sexual battery, and

-- 3 of 14 --

4.
eight years for the felony lewd and lascivious act on a child. Appellant was removed
from the custody of his parent and ordered to be placed in a group home, foster home, or
home of a suitable relative.
From July of 2006 to the end of October of 2008, appellant resided in three group
homes. By the time he was terminated from the last home, appellant had been written up
for approximately 65 group home violations. The incidents included using profanity;
making weapons; refusing to take his medications; injuring himself; damaging property;
threatening to commit suicide; lying to, being disrespectful of, and manipulating staff;
removing group home administrative log books; fighting at school; failing to complete
school assignments; failing to follow staff directives; failing to complete program tasks;
sneaking out of the group home at night; running away from school; possessing unknown
drugs and contraband; pushing staff; refusing to eat; refusing to listen to directives;
becoming overly upset by minor incidents; acting out in public and causing group outings
to be terminated; and speaking aggressively and demandingly to peers. Most of the
incidents took place in the last six months of his stay at the third group home.
During his therapy at the group home, appellant continued to work on his “sexual
offense pattern and managing deviant sexual fantasies,” but “had little understanding of
his sexual offense pattern, sexual triggers, sexual relapse prevention plan, or abuse
victimization affects.” Psychological tests indicated that appellant was at a high risk to
reoffend. He had a predatory mentality in his interactions with others, engaged in
constant intimidation and created chaos in the group home, and tried to make the home
environment unsafe for his peers.
Following termination from the last group home, appellant was detained in the
Tulare County Juvenile Detention Facility. The probation officer then filed a violation of
probation alleging appellant failed to comply with the condition of his probation that he
“learn and obey the rules and regulations of the group home.” He also alleged that
appellant failed to make any progress during his placement. The probation officer

-- 4 of 14 --

5.
recommended appellant be committed to the DJJ, thinking appellant would benefit from a
more structured sex offender treatment program.
In November of 2008, appellant admitted the probation violation allegation that he
had failed to obey group home rules and group home officials, but asked that the
allegation that he failed to make any progress be dismissed. On April 27, 2009,
following three days of contested dispositional hearing, the juvenile court committed
appellant to the DJJ, but suspended placement so that he could participate in a local
program, the adolescent sexual responsibility program (ASRP). The court did so “[i]n
order for me to, in my own mind, be satisfied that we have truly considered all options
for a minor, we must exhaust all local possibilities. And one of the possibilities that has
not been exhausted is the [ASRP].” At the hearing, appellant acknowledged that, if he
did not comply with the program, the court had the option to reimpose his commitment to
the DJJ. Before the court could conduct its first scheduled 90-day review, it received
notice that appellant had been in an altercation and his anticipated release date was
extended by two weeks to February of 2010.
In March of 2010, before appellant could be considered for release, the director of
the ASRP reported that appellant was not ready for release and needed the sexual
offender services provided by the DJJ. According to the report, appellant had informed
the director that he was sexually attracted to prepubescent children of both sexes and
fantasized to such sexual interactions while masturbating.
Also in March of 2010, the probation officer filed a second violation of probation
based on appellant‟s failure to obey all rules and regulations of the youth correctional
center unit program and the directives of the juvenile detention facility staff. The officer
also stated that, while appellant was participating in sex offender counseling, it appeared
that he was “in need of more intense counseling and a structured program.”
At the contested jurisdictional hearing on July 15, 2010, the juvenile court found
appellant had violated the terms and conditions of his probation. At the subsequent

-- 5 of 14 --

6.
July 29, 2010, disposition hearing, the court, after stating it had “truly exhausted every
opportunity available and every resource available to it,” committed appellant to the DJJ
for a maximum confinement time of nine years five months.
On August 5, 2010, the superior court ordered that appellant, because he was now
18 and pursuant to section 707.1, subdivision (b)(1), be transferred to “an appropriate
adult facility.”
DISCUSSION
1. Did the juvenile court have authority to commit appellant to the DJJ?
Appellant contends that none of his commitment offenses qualify as offenses for
which a ward may be committed to the DJJ because they are not listed in section 707,
subdivision (b). We disagree.
Before September 2007, when a minor was adjudged a ward of the court on the
ground he or she had violated the criminal law, the juvenile court could consider as an
option committing the minor to the California Youth Authority (now the DJJ) based on
any offense unless the minor was under the age of 11 or suffered from any contagious
infections or other disease that would probably endanger the lives or health of the other
inmates. (Former §§ 731, 733.)
Sections 731 and 733 were amended effective September 1, 2007. (Stats. 2007,
ch. 175, §§ 19, 22, 37.) “The amendments were enacted as part of chapter 175 of the
Statutes of 2007 in order to make „necessary statutory changes to implement the Budget
Act of 2007 .…‟ (Stats. 2007, ch. 175, § 38.)” (In re N.D. (2008) 167 Cal.App.4th 885,
891.) “„[I]n 2007, policy-makers acted to reduce the number of youth offenders housed
in state facilities by enacting realignment legislation which shifted responsibility to the
counties for all but the most serious youth offenders.‟” (Ibid.) “Amended sections 731
and 733 are the parts of this „realignment legislation‟ that limit the offenses for which
juvenile courts can commit wards to state authorities.” (In re N.D., supra, 167
Cal.App.4th at p. 892.)

-- 6 of 14 --

7.
As amended, section 731, subdivision (a) states that the court may commit a ward
to the DJJ, “if the ward has committed an offense described in subdivision (b) of Section
707 and is not otherwise ineligible for commitment to the division under Section 733.”
(§ 731, subd. (a)(4).)
Section 733 was amended to add an additional category of wards that may not be
committed to the DJJ beyond the previous age and disease related exclusions. Section
733 states in pertinent part, “[a] ward of the juvenile court who meets any condition
described below shall not be committed to the [DJJ]: [¶] … [¶] (c) The ward has been or
is adjudged a ward of the court pursuant to Section 602, and the most recent offense
alleged in any petition and admitted or found to be true by the court is not described in
subdivision (b) of Section 707, unless the offense is a sex offense set forth in subdivision
(c) of Section 290.008 of the Penal Code.”
Appellant admitted two sex offenses—one per subdivision (a) of Penal Code
section 288 and one per subdivision (a) of Penal Code section 286—neither of which is
listed in section 707, subdivision (b).3 But both offenses are included in subdivision (c)
of Penal Code section 290.008, which sets forth certain sexual offenses requiring
juveniles to register. Thus, while appellant‟s sex offenses do not meet the criteria of
wards who may be committed to the DJJ pursuant to the inclusionary language of section
731, subdivision (a)(4), the question arises how the exclusionary language of section 733
applies.
Appellant argues that the plain meanings of sections 731 and 733 are unambiguous
and do not require analysis of the Legislature‟s intent: section 731, subdivision (a)(4) is
an eligibility statute that empowers the juvenile court to send wards to the DJJ only if
they commit a section 707, subdivision (b) offense. Section 733, he argues, is not a DJJ
3Relevant listed offenses in section 707, subdivision (b) include “(5) Sodomy by force,
violence, duress, menace, or threat of great bodily harm,” and “(6) A lewd or lascivious act as
provided in subdivision (b) of Section 288 of the Penal Code.”

-- 7 of 14 --

8.
eligibility statute, but instead places further limits upon the type of offenders the juvenile
court may send to the DJJ. As argued by appellant,
“Section 733 provides that an otherwise DJJ eligible ward under section
731 will still be ineligible for placement at DJJ, unless his most recent
offense was a „707(b)‟ crime or a sex offense enumerated in Penal Code
section 290.008. If the ward is not DJJ eligible under section 731,
subdivision (a)(4), section 733 never comes into play. Or, stated another
way, if a ward is not already a candidate for DJJ under section 731, he
cannot otherwise be committed to DJJ under section 733.”
We disagree with appellant‟s contention that section 733 is clear—indeed, we
think it a model of ambiguity. We have identified at least three interpretations to which
the language of section 733 is susceptible. First, the section could mean (as respondent
contends) that any sex offense listed in Penal Code section 290.008 is a DJJ eligible
offense. Appellant concedes that both of his offenses are so listed. Second, the statute
could mean (as appellant contends) that even a section 707, subdivision (b) offense is not
DJJ eligible unless the offense is listed in 731, subdivision (a) and is the ward‟s most
recent offense or a sex offense listed in Penal Code section 290.008. This interpretation
would mean that section 731, subdivision (a) limits DJJ eligibility to section 707,
subdivision (b) offenses and that section 733 does not expand but instead narrows DJJ
eligibility. Yet a third possibility exists: that section 733 means that a section 707,
subdivision (b) offense is not eligible for DJJ unless the offense is the ward‟s most recent
offense or the most recent offense is a sex offense listed in Penal Code section 290.008.
This would make offenses listed in Penal Code section 290.008 DJJ eligible, whether also
listed in section 707 subdivision (b) or not, but only if the offense is the ward‟s most
recent offense.
In circumstances of ambiguous statutory language, “[o]ur task is to ascertain
legislative intent so we can „effectuate the purpose of the law.‟ [Citations.]” (Hughes v.
Pair (2009) 46 Cal.4th 1035, 1045-1046.) Several members of this court have already
decided that the relevant statutory language manifests the Legislature‟s intent that
violations of Penal Code sections 288, subdivision (a), and 286, subdivision (a), qualify

-- 8 of 14 --

9.
as offenses for which a ward may be committed to the DJJ because they are sex offenses
listed in Penal Code section 290.008. (In re Robert M. (2011) 192 Cal.App.4th 329
(Robert M.), review granted Apr. 20, 2011, S191261.)4 This case, like Robert M., will be
granted review by the Supreme Court. Under such circumstances, it would be a waste of
our resources to engage in further analysis. We therefore follow the precedent already set
by this court and reject appellant‟s argument that he was not eligible to be committed to
DJJ.
Appellant makes a further argument that, because he committed his sexual
offenses in 2005, before he committed his other offenses, the sex offenses do not qualify
as his “most recent offense” under section 733. We reject this argument because, even
under the narrow reading of the language of section 733, subdivision (c) for which he
advocates, sex offenses listed under Penal Code section 290.008 do not qualify for
section 733, subdivision (c)‟s exclusion from DJJ commitment.
2. Did the juvenile court abuse its discretion in committing appellant to the
DJJ?
Appellant also contends that the juvenile court abused its discretion in imposing a
DJJ commitment because he would not benefit from such a commitment, and less
restrictive commitments existed and were rejected. The record fails to support
appellant‟s assertions.
We review a commitment decision for an abuse of discretion, “indulging all
reasonable inferences to support the juvenile court‟s decision. [Citations.]” (In re
Angela M. (2003) 111 Cal.App.4th 1392, 1396.) Under section 734, “[n]o ward of the
juvenile court shall be committed to the [DJJ] unless the judge of the court is fully
satisfied that the mental and physical condition and qualifications of the ward are such as
4The Supreme Court granted review in Robert M. pending resolution of its previously
granted review of In re C.H. (May 18, 2010, B214707) (nonpub. opn.). At the time of this
writing, petitions for review are pending in two unpublished opinions from this court: In re
Joshua H. (July 6, 2011, F060713) and In re W.M. (July 20, 2011, F060516).

-- 9 of 14 --

10.
to render it probable that he will be benefited by the reformatory educational discipline or
other treatment provided by the [DJJ].” In making its judgment, the court must also
consider the minor‟s age, the circumstances and gravity of the offense, and the minor‟s
previous delinquent history. (§ 725.5.)
Commitment to the DJJ cannot be based solely on retribution. (In re Michael D.
(1987) 188 Cal.App.3d 1392, 1396.) Evidence must demonstrate (1) a probable benefit
to the minor and (2) that less restrictive alternatives are ineffective or inappropriate.
(Ibid.) But, “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.” (In re Lorenza M. (1989) 212 Cal.App.3d 49, 58.) We will not
disturb the juvenile court‟s findings if substantial evidence supports them. (In re
Jonathan T. (2008) 166 Cal.App.4th 474, 485.)
The juvenile court law contemplates a progressively restrictive and punitive series
of dispositions, but there is no absolute rule that a minor must have attempted a less
restrictive placement before the juvenile court may order a DJJ commitment. (In re Ricky
H. (1981) 30 Cal.3d 176, 183.) Moreover, “[t]he new provisions [of the Juvenile Court
Law] recognize[ ] punishment as a rehabilitative tool. [Citation.] Section 202 [setting
forth the purpose of the Juvenile Court law] also shifted its emphasis from a primarily
less restrictive alternative approach oriented towards the benefit of the minor to the
express „protection and safety of the public‟ [citations], where care, treatment, and
guidance shall conform to the interests of public safety and protection. [Citation.]” (In
re Michael D., supra, 188 Cal.App.3d at p. 1396.)
As we have explained in the past, “if there is evidence in the record to show a
consideration of less restrictive placements was before the court, the fact the judge does
not state on the record his consideration of those alternatives and reasons for rejecting
them will not result in a reversal.” (In re Teofilio A. (1989) 210 Cal.App.3d 571, 577.)

-- 10 of 14 --

11.
Here, there was ample evidence that the juvenile court considered less restrictive
placements.
Between September of 2006 and October of 2008, appellant was in three group
homes and committed a multitude of violations. In November of 2008, appellant
admitted the probation violation allegation that he had failed to obey group home rules
and officials. On April 27, 2009, the juvenile court committed appellant to the DJJ, but
suspended placement so that he could participate in a local program, the ASRP.
A year later, in May of 2010, after appellant committed other probation violations
but before he was committed to the DJJ, the juvenile court ordered probation to
investigate different placement options for appellant. The court specifically asked
probation to investigate a “local option” proposed by the public defender, a group home
called Little‟s House. The investigation determined that Little‟s House was a post-DJJ
placement facility, and thus concluded that the DJJ was the only placement option left for
appellant. The clinical director of the ASRP, Timothy Zavala, concurred with this
assessment, based in part on the fact that appellant had, in the previous two months,
“display[ed] and report[ed] risk factors that had not previously been an issue.” Zavala
opined that appellant remained at a moderate to high risk to reoffend and would require
even more intensive sex offense specific treatment in a highly structured and supervised
setting.
It was only after appellant failed in the ASRP that the juvenile court finally sent
appellant to the DJJ. In making its determination, the juvenile court called appellant‟s
sex offenses grave and serious and noted that they involved appellant‟s sister, who was at
least six years younger than he. The court also noted that appellant committed the
offenses out of anger and that he continued to show aggressive behavior in all of the
group homes.
The juvenile court noted appellant‟s pattern of not taking responsibility for his
own conduct and blaming others for his failures, despite being in many different

-- 11 of 14 --

12.
environments under many different techniques. The court found that the only constant
was appellant‟s inability “to program and that he ha[d] demonstrated aggressive
behavior.”
The juvenile court also noted appellant‟s “mental and physical condition and his
qualifications” and, taking everything into consideration, found that it was “probable that
the minor will benefit by the reformatory educational discipline or other treatment
provided by the [DJJ].” In so finding, the court stated, “This Court has truly exhausted
every opportunity available and every resource available to it. And so the next resource
that is available to the court is placement at the [DJJ].” In rejecting appellant‟s placement
in the community, the court stated, “The reality is that he has not programmed in a
controlled environment. I do not believe that he would program effectively in an
environment where he would not be monitored or controlled.”
And finally, in speaking to appellant directly, the court stated:
“[L]et me just say one last thing to conclude. An argument was made that
you are being punished because you opened up to your counselor. That did
not even cross my mind. I have said on the record everything that I believe
and the reasons that I am placing you in the [DJJ]. [¶] I tell you this
because I do not want for you to walk away with the impression that, as
your attorney said, that you are being punished for opening up.”
Substantial evidence supports the juvenile court‟s finding that appellant could
benefit from a DJJ commitment, and the court reasonably believed a less restrictive
disposition would not be adequate to hold appellant accountable for the serious offenses
he committed or to provide for the safety and protection of his victims or the public. The
court did not abuse its discretion in ordering appellant committed to the DJJ.
3. Did the juvenile court abuse its discretion when it committed appellant to the
maximum term of confinement?
Appellant contends that the juvenile court abused its discretion when it committed
him to the maximum term of confinement of nine years five months. Specifically,
appellant contends that a shorter period of confinement is warranted in his case due to the
mitigating factors: (a) that he was physically and sexually abused as a child; (b) that he

-- 12 of 14 --

13.
was removed from his mother‟s home and became a dependent of the juvenile court when
he was six; (c) that his only serious felony occurred when he was 14; (d) that he made
some progress in various placements; (e) that he did not commit any new offenses while
in the placements; and (f) that he did not engage in any form of sexual misconduct. We
disagree.
Section 731, subdivision (c) provides that a minor committed to the DJJ not only
may not be held for a period in excess of the maximum period of adult confinement for
the same crime, but that in setting the term of confinement the court must consider the
particular facts and circumstances of the matter that brought or continued the minor under
its jurisdiction. (§ 731, as amended by Stats. 2007, ch. 175, § 19.) “„Failure to exercise a
discretion conferred and compelled by law constitutes a denial of a fair hearing … and
thus requires reversal.‟” (People v. Downey (2000) 82 Cal.App.4th 899, 912.) On a
silent record, this court will presume that a trial court was aware of its discretion and
followed applicable law in performing its official duty. (Evid. Code, § 664; People v.
Burnett (2004) 116 Cal.App.4th 257, 261; People v. Mosley (1997) 53 Cal.App.4th 489,
496.) “This presumption is a logical extension of the rule „concerning the presumption of
regularity of judicial exercises of discretion apply[ing] to sentencing issues.‟” (People v.
Burnett, supra, at p. 261.) Section 731, subdivision (c) contains no provision specifying
that a court must specifically state on the record that it is exercising the required
discretion.
Here, the juvenile court, in sentencing appellant, stated that it would consider what
appellant‟s maximum period of confinement should be pursuant to section 731,
subdivision (c). In doing so, the court stated that it was familiar with the facts of
appellant‟s case, it recounted the details of the disposition hearing, and while it took into
consideration that appellant had grown up in an environment of physical, emotional, and
sexual abuse, it found that the callousness of appellant‟s treatment of his sister was a
more significant factor in aggravation, warranting the maximum term of confinement.

-- 13 of 14 --

14.
Contrary to the position taken by appellant, we conclude that the juvenile court
adequately considered the particular facts and circumstances of appellant‟s case and did
not abuse its discretion in setting the maximum term of confinement.
DISPOSITION
The judgment is affirmed.
___________________________
DAWSON, J.
WE CONCUR:
________________________________
GOMES, Acting P.J.
________________________________
DETJEN, J.

-- 14 of 14 --