In re Trever P.

Filed 8/14/17
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re TREVER P., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE, F073691
Plaintiff and Respondent, (Super. Ct. No. JJD069610)
v.
OPINION
TREVER P.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tulare County. Robert
Anthony Fultz, Judge.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General,
Catherine Chatman and Kevin M. Cornwall, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part II of the Discussion.
Trever P., 12 years old at the time of the offenses, was found by the juvenile court
to have committed acts of sexual molestation against his four-year-old cousin while
babysitting him one day. The court committed Trever to the Division of Juvenile Justice
(DJJ).
In this appeal, Trever argues that the primary evidence against him—an audio
recording, surreptitiously made by the victim‟s mother, of the conversation Trever and
the victim had during the offenses—was inadmissible. He says Penal Code section 632,1
a part of the Invasion of Privacy Act, barred admission of the recording. We agree with
the trial court‟s conclusion that the evidence was admissible under an exception in
section 633.5. The exception allows admission of a surreptitious recording if one party
consents to being recorded for the purpose of obtaining evidence of certain specified
crimes. The victim‟s mother reasonably suspected such a crime when she arranged to
make the recording. She was not a party to the conversation, but, as we will explain,
section 633.5 is properly construed as allowing a parent to consent on behalf of a child
under circumstances like these. In so holding, we adopt reasoning applied in several
other jurisdictions.
The People contend that, in addition to this vicarious parental consent doctrine, the
recording was admissible because the exclusionary provision of section 632 was
abrogated by the provision of the California Constitution known as the truth in evidence
rule (Cal. Const., art. I, § 28, subd. (f)(2)), enacted by the voters as part of Proposition 8
in 1982. It is unnecessary to address this contention. We rely only on the parental
consent analysis.
Trever also argues that the trial court abused its discretion by committing him to
DJJ. In the unpublished portion of this opinion, we disagree. The judgment will be
affirmed.
1 Subsequent statutory references are to the Penal Code unless otherwise noted.
2.
FACTS AND PROCEDURAL HISTORY
Kim was the mother of the victim, Ralph. Kim and Ralph lived with Kim‟s
boyfriend in a trailer. On June 10, 2015, Trever came to the trailer to babysit Ralph alone
while Kim and the boyfriend were at work. Ralph was happy and excited to see his
cousin. When Trever returned the following day to babysit again, however, Ralph cried
and said he did not want Kim to leave. Ralph said he was afraid Trever would leave him
alone in the trailer. By that evening, Kim was worried that Trever could be verbally
abusing Ralph, hitting him, or leaving him alone. She decided that the following day
(June 12, 2015), before Trever came back, she would turn on her cell phone‟s recording
function and conceal the phone in a cupboard, in the hope that the secret recording might
show whether Trever was mistreating Ralph. Trever was with Ralph from 4:00 p.m. to
10:00 p.m. that day.
The recording, which we will describe in more detail below, included about two
and a half hours of this period. On it, Trever‟s voice can be heard ordering Ralph to
submit to numerous sex acts as Ralph says it hurts and tells Trever to stop.
Based on the events reflected in the recording, the district attorney filed a juvenile
wardship petition alleging the following nine counts: (1) forcible sodomy against a
victim under age 14 (§ 286, subd. (c)(2)(B)); (2) lewd act against a child (§ 288, subd.
(a)); (3) forcible oral copulation (§ 288a, subd. (c)(2)(A)); (4) sexual penetration with a
foreign object of a victim under age 14 (§ 289, subd. (a)(1)(B)); (5 through 7) three
forcible lewd acts against a victim under age 14 (§ 288, subd. (b)(1)); (8) sodomy against
a child under age 14 and seven or more years younger than the perpetrator (§ 269, subd.
(a)(3)); and (9) oral copulation of a child under age 14 and seven or more years younger
than the perpetrator (§ 269, subd. (a)(4)).
Before the jurisdictional hearing, Trever filed a motion in limine to exclude the
recording from evidence. He argued that the recording was made inadmissible by section
632 and asked the court to consider dismissing the petition because there was virtually no
3.
other evidence of the offenses. The People argued that the recording was admissible
under the section 633.5 exception.
Section 632 makes it a criminal offense to use a device “to eavesdrop upon or
record” a “confidential communication” without “the consent of all parties” to the
communication. (§ 632, subd. (a).) Except to prove a violation of section 632 itself,
evidence obtained in violation of the section “is not admissible in any judicial,
administrative, legislative, or other proceeding.” (§ 632, subd. (d).) Section 633.5
provides an exception according to which one party to a confidential communication is
permitted to record the communication secretly “for the purpose of obtaining evidence
reasonably believed to relate to the commission by any other party to the
communication” of certain crimes, including “any felony involving violence against the
person.”
The court held a hearing on the motion. Kim testified and recounted the facts
described above about her decision to make the surreptitious recording. On the first day
of babysitting, before Kim went to work, Ralph was “excited and happy to see his cousin.
There was no problem.” On the second day, Ralph was “crying and telling me he didn‟t
want me to go to work.” He was “saying that [Trever] said he is going to leave me all
alone.” That night, Kim decided that the next day she would leave her “recorder on to
see what [Trever] was doing. To see if [Trever] was leaving him inside and going
outside and playing or if he was just being mean to him.” Kim “didn‟t know what was
going on.” She said, “Something was going on, though.” The prosecutor asked if Kim
was “concerned if your son was being mistreated.” Kim answered, “I was concerned that
[Trever] was either verbally abusing him or maybe hitting him. That‟s it.” She believed
Trever might be hurting Ralph. On cross-examination, Kim said Ralph was “acting
terrified” about being left with Trever, and Trever had been threatening to leave him
alone. Ralph “had issues with” being left alone.
4.
The juvenile court held another hearing at which it stated a tentative ruling that the
recording was admissible under the section 633.5 exception. Acknowledging that no
party to the conversation actually consented to the recording, the court accepted the
People‟s invitation to embrace vicarious consent doctrine. Trever argued that Kim‟s
testimony indicated that Ralph only said he was afraid Trever would leave him and Kim
was only guessing when she thought Trever might be hitting Ralph At least implicitly,
this amounted to an argument that, in addition to the lack of consent by any party to the
conversation, the evidence was also inadmissible because Kim did not have a reasonable
belief that the recording would obtain evidence of a felony involving violence. The
court, however, found that Kim had a sufficient basis to trigger the section 633.5
exception. The People also argued that the truth in evidence rule made the evidence
admissible, but the court declined to decide that issue. At the end of the hearing, the
court confirmed its tentative ruling.
At the jurisdictional hearing, the recording and a transcript were admitted into
evidence. The transcript began with Ralph crying and expressing distress about Kim
leaving for work. Kim‟s boyfriend started out trying to console Ralph, saying, “You‟re
gonna be all right. You‟re supposed to miss her. That‟s a good thing. . . . She misses
you too.” But after a while he threatened to spank Ralph and finally said “I swear I will
whip the shit out of you already.” The boyfriend also told Ralph, “Trever‟s gonna be
nice to you, because if not I‟m gonna whoop his f****n‟ ass right in front of you and you
can watch it, okay?”
After Kim and the boyfriend left, the following exchange occurred:
“[Trever]: . . . Get up. (Unintelligible). Does that hurt?
“[Ralph]: (No.)[2]
2 Some words are shown in the transcript in parentheses. The transcript does not
explain the significance of the parentheses.
5.
“[Trever]: Open up (your butthole). (Unintelligible). Come here. I‟m
gonna lay down. I want you to sit your butthole
(unintelligible). Now. . .
“[Ralph]: (Sit on here.)
“[Trever]: Yes, (do it). No, the other way (facing me).
“[Ralph]: This way?
“[Trever]: Yeah, sit down. No, (sit) like this. Put one leg over. Come
here. Put one leg over me now (unintelligible). Wait—wait.
Stand up. Here (unintelligible) (want you to stand right here
and go like this. (Move your ass all the way over). Sit down
(here now). Here, stand on the steps and do it.
(Unintelligible). Come on. Do it right.
“[Ralph]: Like this?
“[Trever]: No, like this. Look, all right (watch me). Bend over and
open it up all the way grab (here, go like that), okay? Hold
on. Does it hurt? Yeah?
“[Ralph] No. Ow, that hurts.
“[Trever]: Stop.
“[Ralph]: That hurts.
“[Trever]: Bend over now. Wait (unintelligible). Now (unintelligible).
Hold on.
“[Ralph]: Ow.
“[Trever]: Stop. I just had it in there. Now. . .
“[Ralph]: (No—now).
“[Trever]: Now, one more time—one more time—one more time.
“[Ralph]: (Owie).
“[Trever]: One more time.
“[Ralph]: I don‟t want to do (one that again).
“[Trever]: One more time. One more time and that‟s it, come on.
“[Ralph]: (Are you gonna hurt me?)
“[Trever]: I won‟t. Just do it. No, get on the first step like I told you to.
“[Ralph]: This step?
“[Trever]: Yes. And when I do—when I stick it in I want you to say ah-
ah, okay?
6.
“[Ralph]: Oh, that. . .
“[Trever]: Stop.
“[Ralph]: That hurts—that hurts.
“[Trever]: Wait—wait, no.
“[Ralph]: No.
“[Trever]: (I‟m doing) it now. (It wasn‟t working). Now do it.
Remember what I told you to say.
“[Ralph]: Ow, that hurts.
“[Trever]: Keep it—keep it now.
“[Ralph]: No, that hurts—that hurts.
“[Trever]: Now.
“[Ralph]: (You‟re hurting me).
“[Trever]: It‟s supposed to hurt.”
The transcript contains many similar passages. Because the facts of the offenses
are not in dispute, one more example will suffice to illustrate the nature of the conduct:
“[Trever]: One more time.
“[Ralph]: Please don‟t do it. (It hurts.)
“[Trever]: Stand up on the step now. I‟m gonna stick it in you. Don‟t
move. Don‟t even cry. If you cry, I‟m never takin‟ you to
see your mom again. Bend over. No. Stand up and bend
over. Okay, there you go. Now stop.
“[Ralph]: Ow.
“[Trever]: (Suck on it).
“[Ralph]: (Unintelligible).
“[Trever]: Now suck it. Suck it. Suck it now.
“[Ralph]: (Unintelligible).
“[Trever]: Suck it. You want—you want me to shove it in there again?
Then suck it.”
Trever told Ralph never to tell his mother what Trever did to him, and said Ralph
would never see his mother again if he told her.
7.
Detective Joseph Henderson of the Merced Police Department testified that he
contacted Trever to execute an arrest warrant. He read and explained Miranda3 warnings
to Trever. Henderson believed Trever understood the warnings. When Henderson asked
whether Trever would give up his rights and be interviewed by Henderson, Trever said
no. Henderson asked no more questions. Afterward, Trever rode to Merced with
Henderson in a police car. They discussed a variety of subjects, including football and
music. Henderson‟s impression was that Trever was intelligent, happy, and “reasonable
to get along with.”
The transcript of Kim‟s testimony at the hearing on the motion in limine was
admitted into evidence at the jurisdictional hearing. The parties stipulated that a doctor
examined Ralph and found no signs of trauma, but would testify that because of the
passage of time, it would not be abnormal for any signs of trauma to have disappeared
before the examination.
The court found by clear and convincing evidence that Trever knew the
wrongfulness of the conduct and thus was capable of committing the crimes within the
meaning of section 26, despite being below age 14. Turning to the offenses, the court
found that Ralph was under age 14 and was very young, but that his exact age was not
proved beyond a reasonable doubt,4 so it was not established that Trever was seven or
more years older than Ralph. The court found counts 8 and 9 not proven because they
required proof that the victim was seven or more years younger than the perpetrator. It
also found count 1 not proven because the recording did not make clear that the object
with which Trever was penetrating Ralph‟s anus was Trever‟s penis, although it
“probably” was. The court found the remaining counts true beyond a reasonable doubt.
3 Miranda v. Arizona (1966) 384 U.S. 436.
4 Statements that Ralph was four years old are found in the probation report and the
report of the psychological evaluator.
8.
Regarding the evidence, the court stated:
“I have to say this tape recording, Exhibit 2, is some of the most sickening
evidence I‟ve heard. I have presided over adult jury trials involving
murders with gory evidence and sexual abuse cases with horrific testimony
from the victims, but actually hearing the acts being committed, as is the
case here, and Trever‟s callous and sadistic treatment of Ralph is very
disturbing. He seems to take pleasure out of hurting Ralph, and threatening
to leave him and spanking him. [¶] There are numerous instances of
Trever telling Ralph to bend over and open his butt, that he was going to
stick it in, and for Ralph to keep it in; and to do it just one more time, over
and over; or requesting Ralph to „suck it‟ and threaten[ing] to leave him
alone if he didn‟t and even threatening to kill him.”
In determining the maximum total confinement time, the court found each count
was a separate occasion. “[T]here were breaks between the acts committed, and [Trever]
did have time to reflect upon his actions.” The court found the maximum time to be 52
years, calculated as follows: On count 2, two years; on count 3, eight years; on count 4,
12 years; on counts 5, 6 and 7, 10 years each.
Finally, the court ordered the case transferred from Merced County to Tulare
County for the disposition hearing. It found that Trever‟s legal residence was in Tulare
County, that his father and grandfather lived there, and that the transfer would be in his
best interest.
At the conclusion of the disposition hearing, the Tulare County Juvenile Court
committed Trever to DJJ. We will describe the evidence presented at the disposition
hearing in our discussion below of Trever‟s challenge to the disposition.
DISCUSSION
I. Admissibility of surreptitious recording
Trever argues that the juvenile court erred when it denied his motion to exclude
the surreptitious recording.5 He renews the argument that section 632 applied; and the
5 Trever frames his argument as a challenge to the sufficiency of the evidence that
he committed the offenses, saying the evidence would have been insufficient if the
recording had been excluded. He does this, perhaps, in the hope that if we reversed on
9.
exception under section 633.5 did not apply, because Kim was not a party to the recorded
communication. Courts in several jurisdictions, applying statutes similar to ours, have
adhered to a rule that a parent can consent on behalf of her child under circumstances like
these, despite the lack of a reference to vicarious parental consent in the statutes. As we
will explain, we concur with the juvenile court in adopting this doctrine.
The underlying facts are not in dispute, and Trever does not now deny that Kim
had objectively reasonable grounds for believing the recording would result in evidence
of a felony involving violence. The question thus is only of the meaning of the consent
the exception to section 632 found in section 633.5, a pure question of law, which we
review de novo. (People v. Nazary (2010) 191 Cal. App. 4th 727, 746-747 [de novo
review of application of section 632 where facts not in dispute], overruled on other
grounds by People v. Vidana (2016) 1 Cal.5th 632, 648, fn. 16.)
Our ultimate task in interpreting statutes is “to ascertain and effectuate legislative
intent.” (People v. Woodhead (1987) 43 Cal. 3d 1002, 1007.) Where the language of a
statute is clear, its plain meaning expresses the legislative intent and thus must be
followed. “However, if the statutory language permits more than one reasonable
interpretation, courts may consider various extrinsic aids, including the purpose of the
statute, the evils to be remedied, the legislative history, public policy, and the statutory
scheme encompassing the statute.” (Torres v. Parkhouse Tire Service, Inc. (2001) 26
Cal. 4th 995, 1003 (Torres).) When looking to the statutory scheme, we interpret
particular provisions “so that the whole may be harmonized and retain effectiveness.”
this basis he could not be retried. As the People point out, however, his argument is
really only a challenge to the admissibility of the evidence, for he does not claim the
evidence actually presented, including the recording, was insufficient. Retrial is
permitted in the case of a reversal resulting in exclusion of the evidence presented at trial
because the prosecution, relying on the trial court‟s evidentiary ruling, might have
decided to omit other evidence it could have used. (People v. Harvey (1984) 163
Cal. App. 3d 90, 107-108.)
10.
(Clean Air Constituency v. California State Air Resources Bd. (1974) 11 Cal. 3d 801,
814.) “In the end, we „“must select the construction that comports most closely with the
apparent intent of the Legislature, with a view to promoting rather than defeating the
general purpose of the statute, and avoid an interpretation that would lead to absurd
consequences.”‟” (Torres, supra, 26 Cal.4th at p. 1003.)
There are several federal and out-of-state cases, considering the application of
similar statutes under comparable circumstances, that are instructive.6 As will be seen,
the weight of the authority from these other jurisdictions heavily favors adoption of the
vicarious consent doctrine.
The oldest of the cases adopting the doctrine is Thompson v. Dulaney (D. Utah
1993) 838 F. Supp. 1535 (Thompson). The United States District Court for the District of
Utah ruled that the vicarious consent doctrine applied to the federal wiretap statute where,
in the midst of divorce proceedings, a mother secretly recorded telephone conversations
her three- and five-year-old sons had with the father, fearing the father was using
telephone communications as an opportunity to interfere with her relationship with the
children, of whom she had been awarded custody.7 (Id. at pp. 1537, 1543-1544.) The
federal statute is a one-party consent statute, unlike section 632, which requires consent
of both parties. Section 633.5, however, is relevantly similar to the federal statute in that
6 The issue also has generated at least two law review pieces. (Dinger, Should
Parents Be Allowed to Record a Child’s Telephone Conversations When They Believe the
Child Is in Danger? An Examination of the Federal Wiretap Statute and the Doctrine of
Vicarious Consent in the Context of a Criminal Prosecution (2005) 28 Seattle U. L. Rev.
955 [arguing in favor of vicarious consent doctrine]; Bogosavljevic, Can Parents
Vicariously Consent to Recording a Telephone Conversation on Behalf of a Minor Child?
An Examination of the Vicarious Consent Exception under Title III of the Omnibus Crime
Control and Safe Streets Act of 1968 (2000) 2000 U. Ill. L. Rev. 321 [arguing against].)
7 The federal statute makes it unlawful intentionally to “intercept” any “wire, oral,
or electronic communication.” (18 U.S.C. § 2511(1)(a).) Among other exceptions, it is
not unlawful to intercept a communication under this statute if “a party to the
communication” consents. (18 U.S.C. § 2511(2)(d).)
11.
consent of one party under the specified conditions suffices to make the interception
lawful.8 The California and federal statutes also have in common a lack of any express
reference to vicarious parental consent. In other words, the question in both instances is
whether, where a child is one party to a communication, the statute should be construed
as if it stated that a child‟s parent can validly consent to the surreptitious recording of the
communication on the child‟s behalf, in situations where a party‟s consent would make
the recording lawful.
In holding that the vicarious consent doctrine was applicable, the Thompson court
reasoned that, under state law, the mother had both a right and an obligation to take, on
the children‟s behalf, actions necessary for their protection. The existence of these
parental powers and duties made necessary the application of the doctrine, since there
would otherwise be circumstances under which the wiretap law would obstruct their
exercise. “[T]his case presents the paradigm example of why vicarious consent is
necessary,” the court stated. (Thompson, supra, 838 F.Supp. at p. 1544.) The court
emphasized that in reaching this conclusion, it was concerned with the fact that, at ages
three and five, the children were both legally and actually incapable of giving consent
themselves. (Id. at p. 1543.) The court formulated the doctrine as follows:
“Thus, as long as the guardian has a good faith basis that is objectively
reasonable for believing that it is necessary to consent on behalf of her
minor children to the taping of the phone conversations, vicarious consent
will be permissible in order for the guardian to fulfill her statutory mandate
to act in the best interests of the children.” (Thompson, supra, 838 F.Supp.
at p. 1544.)
The Sixth Circuit adopted Thompson in Pollock v. Pollock (6th Cir. 1998) 154
F.3d 601, 610 (Pollock). Quoting a federal appellate decision on a related issue (the
8 Specifically, the interception becomes lawful under the federal statute any time a
party to the communication consents, while under section 633.5, a single party‟s consent
makes the eavesdropping lawful provided it is for the purpose of obtaining evidence
reasonably believed to relate to the commission by another party of certain offenses.
12.
application of an exception for situations where the recording was made from an
extension phone inside the house), Pollock stated: “„We cannot attribute to Congress the
intent to subject parents to criminal and civil penalties for recording their minor child‟s
phone conversations out of concern for that child‟s well-being.” (Id. at p. 610.) Noting
the Thompson court‟s emphasis on the young ages of the children there, the Pollock court
nevertheless applied the doctrine to facts involving a 14-year-old child whose own view
of the matter differed from that of the mother who surreptitiously recorded her
conversations with her father and stepmother. (Pollock, supra, at pp. 604-605, 608, 610.)
“It would be problematic . . . for [us] to attempt to limit the application of the doctrine to
children of a certain age, as not all children develop emotionally and intellectually on the
same timetable, and we decline to do so,” the court stated. (Id. at p. 610.)
Pollock appears to be the only federal appellate decision on the issue. Some
district courts in the Eighth and Tenth Circuits have followed Thompson and Pollock.
(Babb v. Eagleton (N.D. Okla. 2007) 616 F. Supp. 2d 1195, 1205-1206; Wagner v.
Wagner (D. Minn. 1999) 64 F. Supp. 2d 895, 899-901; Campbell v. Price (E.D. Ark. 1998)
2 F. Supp. 2d 1186, 1189.) We have found no other federal cases deciding the issue, and
thus none rejecting the doctrine.
Five state supreme courts have adopted the doctrine for purposes of state anti-
interception statutes, in each instance finding a parent could consent vicariously despite
the lack of an express parental consent provision in the statute. (People v. Badalamenti
(N.Y. 2016) 54 N.E.3d 32, 37-40 (Badalamenti); Griffin v. Griffin (Me. 2014) 92 A.3d
1144, 1152; Commonwealth v. F.W. (Mass. 2013) 986 N.E.2d 868, 873-875 [adopting
doctrine and extending it to adult sibling of child victim]; State v. Whitner (S.C. 2012)
732 S.E.2d 861, 864-865; State v. Spencer (Iowa 2007) 737 N.W.2d 124, 133-134
(Spencer).) Intermediate appellate courts in several other states have done the same.
(Lawrence v. Lawrence (Tenn. App. 2010) 360 S.W.3d 416, 418-420; Alameda v. State
(Tex. Crim. App. 2007) 235 S.W.3d 218, 221-223; Smith v. Smith (La. App. 2005) 923
13.
So.2d 732, 740; State v. Morrison (Ariz. App. 2002) 56 P.3d 63, 65; Kroh v. Kroh (N.C.
App. 2002) 567 N.E.2d 760, 763-764; State v. Diaz (N.J. App. 1998) 706 A.2d 264, 269-
270; Silas v. Silas (Ala. Civ. App. 1996) 680 So. 2d 368, 370-372.)
The most recent of these state cases, the New York high court‟s decision in
Badalamenti, contains a thorough discussion. A father suspected his five-year-old son
was being verbally and physically abused by the boyfriend who lived with the child‟s
mother. One day, he tried to call the mother by cell phone. In a development that could
only happen in the age of cell phones, his call went through, but apparently did so
inadvertently, because no one on the other end spoke to the father. He simply heard what
was happening in the mother‟s apartment. The mother and her boyfriend were yelling at
the child and threatening to beat and punch him. The father tried using another cell
phone to call the land line in the apartment, but no one answered. Then he decided to use
a recording function on one of the cell phones to record the conversation he was hearing.
The boyfriend continued threatening to hit the child and made reference to a previous
beating. (Badalamenti, supra, 54 N.E.3d at pp. 34-35.) Months later, the mother‟s
landlady heard an altercation and called the police, leading to the boyfriend‟s prosecution
for assault and child endangerment. (Id. at p. 35.) At trial, the father‟s recording was
used as evidence against the boyfriend, who was convicted. (Id. at pp. 35-36.)
The recording the father made fell within a state statute against eavesdropping,
which required consent of at least one party to the overheard conversation.
(Badalamenti, supra, 54 N.E.3d at p. 37.) The New York Court of Appeals agreed with
the trial court, however, in adopting the vicarious consent doctrine and ruling that the
father‟s consent satisfied the one-party consent requirement, even though he was not a
party to the conversation he recorded. (Id. at p. 38.) After reviewing the prior case law,
the court stated:
“There is no basis in legislative history or precedent for concluding that the
New York Legislature intended to subject a parent or guardian to criminal
14.
penalties for the act of recording his or her minor child‟s conversation out
of a genuine concern for the child‟s best interests. By contrast, the
vicarious consent doctrine recognizes the long-established principle that the
law protects the right of a parent or guardian to take actions he or she
considers to be in his or her child‟s best interests. Yet it also recognizes
important constraints on that right, by requiring that the parent or guardian
believe in good faith that it is necessary for the best interests of the child to
make the recording, and that this belief be objectively reasonable.”
(Badalamenti, supra, 54 N.E.3d at pp. 39-40.)
Referring to a discussion in Dinger, supra, 28 Seattle University Law Review at
page 989, the court also addressed several potential criticisms of the doctrine.
(Badalamenti, supra, 54 N.E.3d at p. 40.) First, it could be argued that the doctrine could
be misused by scheming parents involved in divorce proceedings. The court stated that a
parent acting in bad faith and without an objectively reasonable belief that the recording
was necessary for the child‟s best interest would not be found in trial proceedings to fall
within the doctrine. (Ibid.) Second, it might be thought that the doctrine would allow
parents to invade their children‟s privacy, since even when parents have a good faith,
objectively reasonable belief in the need to intercept communications in a child‟s best
interest, the intercepted communications might often extend to matters unrelated to that
need. The New York court acknowledged that this was a legitimate concern, but
concluded that genuine needs to protect childrens‟ interests outweighed it. The court also
observed that in legal proceedings, irrelevant material would properly be redacted and
excluded from evidence. (Id. at p. 41.)
The third counterargument was that, at least for older children, substitution of a
parent‟s consent for a child‟s lack thereof might be thought to be an unacceptable
infringement on the child‟s autonomy. The court‟s view was that this notion lacked merit
because in the eyes of the law, unemancipated minors lack the sort of autonomy at issue.
At the same time, the court believed the age and maturity of the child should be factors in
a trial court‟s determination of whether there is a good faith, objectively reasonable belief
in the need to intercept communications for the sake of the child‟s best interest. In other
15.
words, the best interests of older, more mature minors might less often be served by
surreptitious interception of their communications by their parents. Trial courts‟
appropriate consideration of this factor would serve to mitigate the impact of the doctrine
on older children‟s autonomy. (Badalamenti, supra, 54 N.E.3d at p. 41.)
Fourth, a critic of the doctrine might contend that it would lead to discord and
resentment within families, when children learn their parents have secretly recorded their
communications. The New York high court concluded that this possibility was an
acceptable cost of the doctrine, justified by its benefits, and also that it can be reduced by
trial courts‟ efforts to exclude irrelevant matter from evidence. (Badalamenti, supra, 54
N.E.3d at p. 41.)
We have found no state supreme court decisions rejecting the doctrine. One, West
Virginia Dept. of Health and Human Resources ex rel v. David L. (W.Va. 1994) 453
S.E.2d 646, referred approvingly to Thompson, but held that the doctrine nevertheless did
not apply under the circumstances of the case because the recording was made by the
noncustodial parent using equipment that had been surreptitiously placed inside the
custodial parent‟s home. (West Virginia Dept. of Health and Human Resources ex rel v.
David L., supra, at p. 654.)
We have found one intermediate state appellate court decision rejecting the
doctrine. In Williams v. Williams (Mich. App. 1998) 581 N.W.2d 777, an ex-wife sued
her ex-husband, alleging he violated the federal wiretapping law and a state
eavesdropping law by surreptitiously recording telephone conversations between him and
their five-year-old son. (Id. at p. 778.) The trial court granted summary disposition to the
father on these claims, concluding that as the custodial parent, the father could consent
vicariously on behalf of the son where it was in the son‟s best interest to do so. (Ibid.)
The appellate court reversed. Acknowledging the contrary results reached in Thompson
and Pollock, (Williams v. Williams, supra, at p. 781 & fn. 3) the court nevertheless
believed that because both the state and federal statutes were silent on the question of
16.
whether consent included vicarious parental consent for minors, recognition of the
doctrine would constitute an improper enlargement of the statutes‟ consent provisions.
(Id. at pp. 779-780.) The court stated that it must presume the legislators intended only
the meaning they “plainly expressed” (id. at p. 779) and could not “speculate with regard
to the probable intent” beyond the “words expressed in the statute” (id. at p. 780). The
court also believed acceptance of the doctrine was “likely to have widespread
implications and may encompass surreptitious actions by parents with less than laudable
motives.” (Id. at p. 781.) Finally, the court suggested that parents involved in custody
disputes and needing to take actions in the best interests of their children could obtain
authority via court order. (Ibid.)
We agree with the reasoning in the cases adopting the vicarious consent doctrine
and we think it applies to the one-party consent exception in section 633.5. The key to
the analysis is that the Legislature could not have intended to deem a parent a criminal for
eavesdropping on his or her child‟s conversation under conditions like these—and if the
conduct is not unlawful under the statute, the statute‟s exclusionary provision is not
triggered. Rejecting the doctrine would lead to a consequence that is absurd and
exceedingly unlikely to have been intended by the Legislature.
Our statutes are unlike any of those considered in the prior case law on this topic
in that they countenance eavesdropping with a single party‟s consent only “for the
purpose of obtaining evidence reasonably believed to relate to the commission by another
party to the communication of” listed crimes. (§ 633.5.) As applied to our law,
therefore, the vicarious consent doctrine states that section 632 does not prohibit a parent
from recording a confidential communication to which his or her minor child is a party if
(a) the purpose of the recording is to obtain evidence reasonably believed to relate to the
commission by another party to the communication of a crime enumerated in section
633.5; and (b) the parent has a good faith, objectively reasonable belief that the recording
is in the best interest of the child.
17.
It might be argued that the exception should be extended to other situations as
well. For instance, suppose a parent has two children, sibling A and sibling B, and has a
reasonable belief that recording a conversation between sibling A and a third party would
produce evidence of an enumerated crime and would be in the best interest of sibling B,
who is, let us imagine, a potential victim. Because of situations like this, would it be
better to embrace a broader exception than the one we recognize here? Since this case
does not present such a situation, it would be inappropriate to express any opinion either
way.
Another question is how the doctrine should be applied in cases in which the child
is old enough to have, in a meaningful way, his or her own opinion regarding the
surreptitious recording of a confidential conversation. Should the vicarious consent
doctrine be held not to apply when a 17-year-old wants the confidential communication
to be kept secret from his or her parent? We agree with the approach of the New York
Court of Appeals on this point: The doctrine remains applicable, but the facts about the
minor‟s age and maturity may be relevant to the question of whether an objectively
reasonable basis exists for finding the recording to be in the minor‟s best interest. It also
seems to us that this type of concern will likely be less acute under our statutes, since the
presence of a reasonable basis for believing the recording will produce evidence of a
crime will often drive the determination of whether the recording is reasonably believed
to be in the child‟s best interest (and the absence of such a basis will render the exception
unavailable and thus will moot out the child‟s-best-interest question).
Trever argues that we should not employ the vicarious consent doctrine simply
because it is not contained in the statute, suggesting that the language of the statute is
clear and its plain meaning constrains us not to adopt the doctrine. In our view, the
statutory language is not clear. The reasoning of the Iowa Supreme Court in Spencer,
supra, 737 N.W.2d 124, is of assistance here. That court explained that the problem
under examination was not whether to create a new exception to the state‟s anti-
18.
interception statute, but to determine the meaning of the one-party consent exception
within that statute. The ability of children to consent is often limited as a matter of law,
in addition to being often factually absent, as in the case of children too young to
comprehend the significance of consenting to the matter at hand. At the same time, the
law often vests in parents or guardians a power to consent on behalf of children. The
Iowa court‟s view was that, in light of this background, the term “consent” in the Iowa
anti-interception statute was ambiguous, being reasonably subject to interpretations
according to which parents did and did not have a role in granting consent to intercept
their children‟s communications surreptitiously. This ambiguity rendered it necessary to
find the intent of the legislature by reference to extra-textual considerations, including the
policy in favor of adopting a reasonable interpretation that avoids absurd results and best
achieves the statute‟s purpose. (Id. at pp. 128-130.)
We are in the same situation. Our law states that both parties‟ consent is required
in general (§ 632) and that one party‟s consent is sufficient under the exception (§ 633.5),
but does not make clear what this means when the parties to the communication are
children.9 Children in California may be legally incompetent to give, or factually
incapable of giving, their consent in various situations, and even when they could
consent, the law might still empower their parents to consent on their behalf. What, then,
does consent mean for children in the context of these statutes? Our answer, which is
only a partial answer sufficient to resolve the case before us, is as stated above: The
requirements of the consent exception can be satisfied when a parent gives consent on
behalf of a minor child based on an objectively reasonable belief that the recording will
produce evidence of an enumerated crime and that the recording is in best interest of
child.
9 Section 633.5 does not actually contain the word “consent,” but section 632 does,
and the reference to section 632 in section 633.5 has the same effect as a provision stating
in so many words that a single party‟s consent suffices to trigger the exception.
19.
The People argue that, in addition to or as an alternative to adopting the vicarious
consent doctrine, we should hold that the exclusionary provision of section 632 was
abrogated by the truth-in-evidence rule, as we have mentioned. Our holding makes it
unnecessary to address this contention.
II. DJJ commitment
Trever argues that his commitment to DJJ was error. We review the decision for
abuse of discretion. (In re Robert H. (2002) 96 Cal. App. 4th 1317, 1329-1330.) The
juvenile court‟s decision to commit a minor to DJJ must be supported by substantial
evidence demonstrating that the commitment will probably benefit the minor and that less
restrictive alternatives are inappropriate. (In re Teofilio A. (1989) 210 Cal. App. 3d 571,
576; Welf. & Inst. Code, § 734.) Among the facts that must be considered are the age of
the minor, the circumstances and gravity of the offense, and the minor‟s previous
delinquent history. (Welf. & Inst. Code, § 725.5.) “[T]here is no absolute rule that a
[DJJ] commitment cannot be ordered unless less restrictive placements have been
attempted,” but DJJ is “normally a placement of last resort.” (In re M.S. (2009) 174
Cal. App. 4th 1241, 1250.)
The court considered the report and recommendation prepared by the probation
officer. A psychological evaluation was prepared by a psychologist at the request of the
probation officer. It was not completed in time to be considered before the probation
officer‟s report was prepared, but it was filed separately in the juvenile court and the
court considered it. Trever presented testimony by his grandfather, his grandmother, a
social worker, and a representative of the Tulare Youth Services Bureau.
The probation report stated that in 2013, someone reported to Child Welfare
Services that, according to Trever‟s younger brother, Trever “inserted his „thing‟ into [the
brother‟s] rectum” and molested the brother a total of 22 times. Trever‟s mother knew of
this and, not wishing to involve law enforcement, undertook to keep the brothers separate
20.
on her own. These allegations were investigated, but Child Welfare Services could not
substantiate them and concluded they were unfounded.
Trever told the probation officer he was sexually assaulted by a friend of a friend
seven years earlier, when he was six. The perpetrator penetrated Trever and forced
Trever to orally copulate him. Trever finally told his father about this when he was
arrested for the current offenses. Trever also told the officer he was first exposed to sex
at age six when an older friend showed him pornography on the internet.
Trever admitted to the probation officer that he raped Ralph, penetrating him and
forcing him to copulate him orally, and said he did this because he was upset with Kim,
his aunt, and wanted to get back at her. He was upset with Kim because she “did not like
him due to the amount of fights he gets himself into,” the probation officer wrote. Trever
said he regretted doing this and felt horrible for Ralph; but he also reported that he had
heard Ralph was evaluated and was found not to have been traumatized.
Before his arrest, Trever lived with his father and younger siblings in Porterville,
according to his statement to the probation officer. He had been out of contact with his
mother for a year when the probation officer interviewed him. (He had been in custody
for 270 days at that time.) He had no prior juvenile record. Trever was with his father
attempting to board a bus in Hayward when he was found and taken into custody. He
told the probation officer he had a good relationship with his father. He said he was
respectful to his father and usually did as he told him. When he failed to obey his father,
his father grounded him and took away privileges. He said he was passing all his classes
with Bs when he last attended school at juvenile hall in Merced County and had no
attendance or behavioral issues there. School records submitted to the court confirmed
this. Trever said he had never used alcohol or illegal drugs, had never associated with a
gang, and was not receiving any mental health treatment. He believed he had anger
issues, however. Trever said he would like to be returned home with his father on
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probation, or, if that was impossible, to be committed to the Tulare County Youth
Facility to participate in the short-term or mid-term program there.
Trever‟s father told the probation officer Trever had been experiencing depression
and having issues with his mother before committing the offenses. He thought Trever
might have been sexually abused by gang members at an early age. He had a good
relationship with Trever, whom he considered well-behaved and respectful and who he
never imagined was capable of committing such crimes. Trever had never had any issues
at school, had never been in trouble with the law before, and did not use illegal drugs or
associate with gangs. The father was not aware of any mental health or anger
management issues. He was not aware of any developmental delays and reported that
Trever was not a client of the Regional Center. He would have liked Trever to be
returned home on probation and to receive sex offender counseling.
The probation officer spoke with a therapist who had seen Trever at the Tulare
County Juvenile Detention Facility. Trever had two counseling sessions with the
therapist. The therapist reported that Trever appeared to play down the severity of the
charges against him. Trever had not been diagnosed or given any psychiatric medication
up to that time.
Characterizing the offenses, the probation officer stated that Trever sodomized
Ralph six times in two hours and 46 minutes and that the crimes were heinous and
sophisticated. Further, Trever used fear to accomplish the crimes by threatening Ralph
with spanking, leaving him alone, and preventing him from seeing his mother. The
crimes also were sadistic, the probation officer wrote, for Trever appeared on the
recording to be receiving gratification from Ralph‟s pain and fear. Trever expressed
some remorse, but seemed to minimize the magnitude of the harm done.
The probation officer considered recommending placement with relatives or
placement in a foster home or group home, but concluded Trever was a danger to himself
and the community and thus required placement in a locked facility. The officer
22.
considered local custody in the Tulare County short-term, mid-term, or long-term
programs, but found that these programs would not provide sufficiently intensive or
lengthy sex-offender therapy. Consequently, the probation officer recommended that
Trever be committed to DJJ. In the officer‟s view, this placement would provide the
most appropriate therapy while also providing 24-hour supervision in a highly secure
facility and “instilling discipline” by “holding him accountable for his actions.” “It is
hoped that the length of the commitment at [DJJ] and the available services, will allow
[Trever] sufficient time to gain the tools he needs to refrain from any further delinquent
behavior,” the probation officer wrote.
A document was admitted into evidence describing the sex-offender treatment
program offered by DJJ.10 The “estimated time to complete the program” was 18 to 24
months, but “the program can be completed in a year if the client is of low risk for
reoffending and is motivated.” After the client completes the sex-offender treatment
program, life-skills services continue to be provided for the remainder of the client‟s time
in custody. Clients of the program are housed in a sex-offender-specific housing unit, but
interact with the general population during school hours. The first three months of the
program are an orientation phase during which the client undergoes assessment to
determine the client‟s risk level and create an individualized service plan for his or her
treatment. The remaining period, estimated at 15 to 21 months, is called the residential
phase. During this time, the client participates in individual counseling six or more hours
per week, group counseling twice per week for a total of three hours, and large group
counseling once per week for two hours. The program includes family counseling and
accommodates families unable to travel by conducting telephonic sessions. Finally, the
10 We have found no place in the record where this document was authenticated,
shown to be current and correct, or otherwise supported by testimony. But no party has
challenged its accuracy as a description of the services available to Trever at DJJ.
23.
program includes reunification and re-entry services to assist clients when they return
home.
The psychological evaluation was filed in the juvenile court two days after the
probation report. It was prepared by Donna Snow, M.S., a psychological trainee at
Alliant International University. Snow interviewed Trever for two and a quarter hours
and administered four psychological tests: the Wide Range Achievement Test, Fourth
Edition (WRAT-IV); the Wechsler Intelligence Scale for Children, Fourth Edition
(WISC-IV); the Personality Inventory for Youth (PIY); and the Juvenile Sex Offender
Recidivism Risk Assessment Tool, Second Edition (JSORRAT-II).
In contrast to his statement to the probation officer, Trever told Snow he had been
living with a friend of his mother—not with his father—before he was taken into custody.
He said he had not seen his father for three or four months before that time. Also living
in the mother‟s friends home were three cousins, two aunts and an uncle. Trever said he
moved around between the homes of his father, his mother‟s friend, and his mother. He
had not seen his mother in over a year, did not have a good relationship with her, and
considered her to be a “„crack head who sits on the couch and smokes weed all day.‟” He
had a good relationship with his father. Both his father and his mother had been arrested
multiple times and spent time in jail.
Trever told Snow he had been neglected by his mother when he was younger. She
would sometimes leave the house for days, leaving Trever and his younger brother alone.
Once, when he was 10, she left him alone in a park for five days. Trever said his mother
was using drugs during these incidents. Snow described a Child Welfare Services report
according to which, in 2011, someone dropped Trever and his brother off at a public pool
in the care of a 12-year-old neighbor. Trever got a severe sunburn and someone called an
ambulance. Paramedics determined that Trever did not need to go to the hospital.
Trever described to Snow the incident in which he was sexually assaulted at the
age of six. He said it took place over a period of three days. The perpetrator was an
24.
adult, who showed him pornography before assaulting him. Trever said he liked the
pornography and it made him aroused. He never told anyone about the incident before
his arrest and dealt with it at the time by going home and sleeping. He described his
reaction as frightened but not upset.
Trever told Snow that before his arrest, he was getting Cs and Ds in school. He
said that, in spite of this, he was asked to join classes for gifted students, but he declined.
He said he got along with teachers but hated female teachers because they did not like
him. He did not know why they did not like him. He said he was expelled from a school
in first grade because he cut another student with scissors. Laughing, Trever told Snow
this had been an accident. Trever also said he had been suspended for fighting more
times than he could remember.
Snow asked Trever about sexual feelings and activities. He told her he was
heterosexual and wondered why anyone would question his sexual orientation. He said
other minors in juvenile hall knew of his offense and assumed he was homosexual; this
angered him. He claimed he had had 60 or more girlfriends around the state, and,
because he often moved, he sometimes left them without remembering to break up.
Usually the girls were a year or two older than him and he lied to them about his age. He
was not sure whether he had broken up with his most recent girlfriend. He said he first
kissed a girl when he was seven and first gave a girl a hickey when he was 10 or 11. He
once digitally penetrated and engaged in oral copulation with a girl a year older than him.
He had never had vaginal intercourse. He said he was “strict” with girls, meaning that
when he had a girlfriend, he would forbid her to see friends or do things unless he was
present. He thought the girls liked this. (Trever also described his father and his
mother‟s ex-husband as “strict military” men.
Trever said he began viewing pornography regularly after he was shown
pornography and assaulted at age six. He watched pornography two or three times a
week on a cell phone or tablet. He said he liked it and it made him feel “„horny.‟” He
25.
viewed heterosexual pornography, lesbian pornography, pornography involving group
sex, and violent pornography. He thought about pornography every day, most of the day,
even when he did not want to think about it. He said his sexual fantasies were about
consensual heterosexual, lesbian and group sex. He denied fantasizing about rape or
violent sex. He said he had never coerced anyone to engage in sexual activity except
during the current offenses.
Trever discussed the therapy he had been receiving while in custody. He said he
was working on “anger” with the mental health staff, but he kept things from them he
thought he should be telling. Specifically, he never mentioned the nightmares he had two
or three times per week. These were about the sexual assault he experienced at age six.
He also sometimes thought about that incident during the day and could not get the
thoughts out of his mind. He often feared going to friends‟ homes because he could be
victimized again. He said he began having trouble sleeping after that assault and still
only slept about four hours per night. Currently, he felt depressed two or three days each
week and constantly felt anxious.
Snow asked Trever about the occasion on which he was accused of sexually
assaulting his brother. In response, Trever “became enraged; his face turned red and he
slammed his fists on the table while demanding to see the evidence for the offense.” He
demanded to know how Snow knew about the allegation, which he believed was
confidential. It took him several minutes to calm down. Then he explained that the
accusation had made him furious at the time. He said his grandmother made up the story
because she did not like Trever and was a drug user and an alcoholic. Trever became
angry again when Snow pointed out the similarity between that alleged incident and the
current offenses. He said he would kill himself if he had really subjected his brother to a
sexual assault.
When Snow questioned Trever about the current offenses, Trever at first denied
penetrating the victim. When Snow said the recording indicated what really happened,
26.
Trever was angry that Snow had been given access to it. After this, Trever admitted
sodomizing the victim “„quite a few times.‟” He said, “„Yes, I raped a child.‟” He said
he did it because he was angry at his aunt.
Trever stated that on the first day of babysitting, the day before the offenses, he
showed pornography to Ralph and was aroused by the pornography. He said he knew
Ralph also was aroused because he “„saw his pants rise.‟” When Snow asked about other
facts of the assault, such as the oral copulation, Trever said his “„mind went blank‟”
during the attack and he did not remember everything that happened. When Snow asked
how he could continue assaulting Ralph while Ralph was screaming in pain and begging
him to stop, Trever again said his mind went blank. He was thinking only about sex and
how it felt.
Trever told Snow he would never do such a thing again, and if he did he would
commit suicide. But he also said the attack “„wasn‟t that bad, he‟s not dead.‟” He
believed he would be released after his next court date, though he said he would like to be
sent to a boot camp because he liked working out. When asked what he would say to the
judge if he could, he said he wanted to “„cuss him out‟” for “putting him in this
situation.” Then he told Snow not to put that in the report of the evaluation, and to write
instead that he knows he made a mistake and regrets it.
Trever said he had “999” good friends and maybe more, but explained that these
were Instagram friends. He also had actual friends, with whom he hung out daily before
his arrest, spending time at their houses and going out to restaurants and stores. He
preferred female to male friends. He had trouble making friends while in custody
because the other inmates knew about his offenses. He said he had twice been in fights
after being attacked by female detainees because of the nature of his offenses.
Regarding his medical history, Trever said he had twice injured his head, once at
age five when he fell off a bed while jumping on it and striking his head on another piece
of furniture, and once at age 10 or 11 when boxing with uncles and a cousin. When he
27.
was nine he broke his left arm in a bicycle crash. At 12, he fell off a platform at a
carnival and broke his wrist. (At various places in the record it is stated that Trever‟s
mother and father and his aunt and the aunt‟s boyfriend were all carnival workers, and the
trailer in which the current offenses took place was located at the Merced County
Fairgrounds during a carnival. Trever said he had been working at carnivals himself
during the summers since he was 10.
Trever told Snow he had received medical attention for pain in two teeth while in
custody. He said one tooth was infected and needed to be pulled and the other needed a
root canal. Once, he pretended to cry in front of a doctor with the intent of giving the
impression that his teeth were causing more pain than they really were, so that he would
be treated more quickly. Other than pretending to cry to deceive the medical staff while
in custody, Trever said he had never cried, except one time, when he was first
incarcerated after his arrest.
The WRAT-4 (the cognitive functioning assessment) measured Trever‟s scholastic
achievement in several areas. The results indicated average ability relative to others his
age in reading and arithmetic and below average ability in spelling. The WISC-IV (the
intelligence test) indicated a full scale intelligence quotient in the low average range. The
PIY (the personality inventory) indicated impulsivity, a failure to complete tasks, and
poorly modulated expression of anger.
Trever‟s score on the JSORRAT-II (the sex offender recidivism risk assessment)
indicated that he fell within the risk group for which it is reasonable to expect only a
moderate proportion of individuals to re-offend. In Snow‟s view, however, this result
probably underestimated Trever‟s recidivism risk. Several factors not captured by the
test supported this view: his apparent arousal by the violence and control evidenced in
the recording; the continuation of the attack despite the victim‟s screams of pain and
pleas to stop; the use of threats to leave when Trever knew Ralph was terrified of being
left; the use of pornography, including violent pornography, from a young age; Trever‟s
28.
admission that he thought about pornography every day; the allegation that Trever
committed a similar attack on his younger brother; Trever‟s victimization by a similar
attack when he also was very young; his lack of empathy for the victim; and his lack of a
reliable family support system.
Snow made a diagnosis of conduct disorder, childhood onset, with limited
prosocial emotions, severe. Conduct disorder is “[a] repetitive and persistent pattern of
behavior in which the basic rights of others or major age-appropriate societal norms or
rules are violated,” as manifested by specified criteria, such as frequently starting fights,
having been cruel, having forced sexual activity on another, deliberately destroying
property, stealing, and lying to gain advantages. (American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) 469-470 (DSM-
V).) The facts on which Snow based this diagnosis were the reports of frequent fighting,
the current offenses, and the deceptive behavior to medical staff about his tooth pain.
The specification of limited prosocial emotions was based on the lack of remorse and
callousness toward the victim. Snow also diagnosed post-traumatic stress disorder based
on the nightmares, flashbacks, guilt and fear related to the sexual assault of which Trever
was a victim.
Snow‟s recommendation was that Trever be required to complete individual sex
offender treatment and group therapy focusing on his sexual behavior, both in a
structured environment. Snow further recommended therapy to address Trever‟s own
victimization. Snow‟s recommendation included an opinion that Trever should be placed
in “protective custody” while incarcerated because he would be in danger of violence
from other wards due to the nature of his offenses.
After several continuances, the dispositional hearing took place over two days,
April 26 and May 3, 2016. On the first day, Trever presented a case plan according to
which he would be released to live with his grandfather with electronic monitoring and
would receive sex offender counseling on an outpatient basis from the Tulare Youth
29.
Service Bureau (TYSB), a private, non-profit mental health services provider. A social
worker named Rosemary Gonzalez, from the public defender‟s office, submitted this case
plan in writing and testified in support of it. Gonzalez testified that the TYSB program
was designed to help those who are both perpetrators and victims of sexual abuse. Trever
would also participate in mentoring with an adult through Big Brothers-Big Sisters of
Tulare County. Gonzalez testified that Trever himself was amenable to this plan.
Trever‟s maternal grandparents also testified in support of the plan. The
grandfather said Trever would live in his house and he would take all necessary measures
to ensure Trever attended counseling and had no unsupervised contact with other
children. The grandmother (who was no longer married to the grandfather) testified that
she was retired and could devote her time to helping supervise and care for Trever She
had been a nurse and had experience in the mental health field.
Trever‟s counsel argued in favor of this plan. The People argued for a disposition
in accordance with the probation officer‟s recommendation. The trial court was leaning
toward a DJJ commitment, but was not yet persuaded either way and continued the
hearing to allow Trever to bring in a witness who could provide further information about
the treatment program offered by TYSB.
On the second day, the court heard testimony by Pablo Martinez, a therapist and
supervisor employed at TYSB. Martinez testified that TYSB‟s program was called the
Adolescent Sexual Responsibility Program (ASRP). The program “[t]ypically” lasted
“about a year to two years depending on the client.” It began with a psychological
assessment and an assessment of recidivism risk. Then the client would begin weekly
individual therapy and also group therapy if appropriate for the client. Martinez believed
a strength of the program for Trever was that it was designed specifically to address the
needs of sex offenders who had themselves been sexually abused. With respect to
Trever‟s placement, Martinez testified that the ASRP could provide therapy even if
Trever was in custody in the Tulare County Juvenile Detention Facility (JDF). A
30.
therapist could come to JDF to see Trever weekly and might also see other sex offenders
housed there (as would be necessary for there to be a possibility of group therapy for
Trever).
Questioned about how the ASRP compared with the sex offender treatment
program available at DJJ, Martinez testified that his supervisor considered DJJ‟s program
to be of high quality, but Martinez was concerned about the effects on Trever of
associating with the other wards there. He pointed out that DJJ‟s population included not
just sex offenders but also wards involved in various other kinds of criminal activity,
while Trever had no other history of offending. Martinez also said he was not sure
whether the DJJ program had any features to address the needs of offenders who had
been abused themselves.
A document was admitted into evidence summarizing the features of the ASRP as
implemented within JDF. It stated that clients received individual counseling a minimum
of one to two hours per week, with the possibility of an increase in accordance with the
needs of the individual. The possibility of group therapy depended on there being three
participants deemed appropriate for group work in custody and in the program. The
program included the development of an offense prevention plan and counseling
preparatory to discharge from JDF, with assistance in transitioning to an outpatient sex
offender treatment program to provide ongoing post-release therapy.
On cross-examination, Martinez testified that clients in the program typically had
an hour to an hour and a half of individual counseling per week. He did not know
whether there were two other clients at JDF who could make up a therapy group with
Trever, and TYSB had not conducted any therapy groups at JDF for some time. He
opined that group therapy, though beneficial, was not necessary for success in the
program. He said a highly motivated client could complete the program in a year; a less
motivated client might take two years.
31.
At the end of the hearing, the People argued again in support of a DJJ
commitment. In light of the severity of the conduct, Trever‟s low levels of empathy and
remorse, and Snow‟s conclusions about Trever‟s risk of reoffending, the deputy district
attorney believed the less intensive therapy that would be available to Trever through
TYSB while at JDF would be inadequate. Further, even if TYSB‟s counseling program
could last longer than a year, a local JDF commitment under the long-term program
would still only be for a year. DJJ‟s program would provide far more intensive
counseling, including several times as many hours of therapy each week; and because of
the potential length of a DJJ commitment, Trever could receive this intensive counseling
in a locked facility for a substantially longer time.
In his closing argument, Trever‟s counsel referred to a recent decision in another
case in which a ward was committed to JDF and ordered to undergo sex offender
treatment while in custody through a program provided by Alliant International
University. (It appears from a document in the record that this program is less intensive
than the one offered by TYSB, in that it involves an hour and a half of group therapy per
week plus individual counseling one hour per month. Counsel‟s point in mentioning it
seems to have been only that a program of sex offender counseling was feasible for a
ward committed to JDF.) Defense counsel also argued that the court ought not to rely on
the allegation that Trever committed a prior sexual assault against his brother, since the
conclusion of Child Welfare Services was that this allegation was unfounded.
Trever‟s main argument, however, was that DJJ would be a harmful environment
for Trever. Counsel referred to the risks associated with the presence of other, older
wards with extensive offense histories, risks recognized by Snow‟s evaluation. Further,
Trever‟s family would be far away if he were committed to DJJ, and even if a placement
with relatives were found unsuitable, Trever‟s family could still provide support if he
were in local custody. Also very significant, in counsel‟s view, was that a DJJ
commitment for these sex offenses would trigger the lifetime sex offender registration
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requirement. This would limit his future employment prospects and make it difficult for
him to find housing in the county as an adult. The court could commit Trever to JDF
with a counseling program and still retain jurisdiction to resort to a DJJ commitment later
if Trever failed to make progress in the less restrictive placement. Counsel described DJJ
as “the nuclear option” and contended that the court should reserve it as a last resort.
In its oral ruling, the court found that sex offender treatment would be available to
Trever if he were committed to JDF in the long-term program. But the quantity of
individual therapy provided would be less than at DJJ and there might be no group
therapy. DJJ had the most comprehensive therapy available. In finding that local
custody with the therapy available there would be inadequate, the court emphasized its
view that the offenses were extreme. The sexual assault was “among the most violent
I‟ve ever seen in 21 years in the criminal justice system,” it said. (The court also stated,
however, that it was not relying on the allegation that Trever had previously molested his
brother. The court had doubts about Trever‟s amenability to treatment because there was
evidence that Trever did not consider his conduct to be extreme (having said it was “not
that bad” because Ralph was “not dead”), admitted to Snow that he did not tell important
things to his therapist, wanted to cuss out the judge, thought his situation was the judge‟s
fault, and told Snow to omit this from the psychological evaluation and write that he was
sorry instead. The court thought these were all indicators that Trever would be inclined
to try to manipulate the system instead of really trying to be rehabilitated, and this in turn
indicated that the most intensive therapy available was needed. The court also cautioned
against “demoniz[ing] DJJ based on prior history,” and opined that “DJJ is not the
horrific environment” it is often considered to be. The court declared Trever a ward,
committed him to DJJ, and found the maximum term of confinement to be 52 years, less
320 days time served.
In our view, the juvenile court properly relied on the more intensive and longer-
lasting program of therapy at DJJ. The alternative program proposed by the defense was
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far less substantial. In light of the gravity of the offenses, the evidence of Trever‟s
attitude toward them, and the other facts in the well-developed record of his mental
condition, the court could reasonably find it was probable Trever would benefit from the
DJJ program and the alternative presented by the defense was not adequate for his needs.
Trever contends that DJJ should only be used as a last resort, after less restrictive
alternatives have been tried and found ineffective. This is, indeed, normally the case, but
as we have said, there is no rule that other placements must be tried in all cases. The trial
court had discretion to find that Trever‟s circumstances, the facts of the offenses, and the
forms of treatment available at DJJ and elsewhere justified resorting to DJJ directly in
this instance.
Trever maintains that his age and lack of prior adjudications show that a less
restrictive alternative should have been tried first. Again, these are important factors and
they ordinarily point to a less restrictive alternative. But the evidence in the record—
about the offenses, the minor, and the treatment regimes available in the various
placement alternatives—brought a first-instance DJJ commitment within the juvenile
court‟s discretion in this case.
Trever argues that his recidivism risk according to the J-SORRAT-II test results
was only moderate, and this supported a non-DJJ disposition. The juvenile court,
however, could reasonably rely on the evaluator‟s well-supported opinion that this test
result did not reflect the true risk, which was higher.
Trever argues that he will face danger and harmful influences at DJJ because the
wards there are mostly older and have more extensive records, and because his offenses
will make him a target. In the trial court, the defense stressed that the lifetime sex
offender registration requirement triggered by the DJJ commitment will forever
marginalize him and impair his efforts to integrate into society as an adult. These are real
concerns and we do not dismiss them. But they were brought to the trial court‟s attention
and we are not persuaded it was an abuse of discretion to find, under the totality of the
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circumstances, that the commitment still would benefit Trever and less restrictive
alternatives still would be insufficient.
DISPOSITION
The judgment is affirmed.
*************
_____________________
SMITH, J.
WE CONCUR:
_____________________
POOCHIGIAN, Acting P.J.
_____________________
FRANSON, J.
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