In re W.L. CA1/4

Filed 10/18/21 In re W.L. CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re W.L., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
A160886
v.
W.L., (Del Norte County
Super. Ct. No. CRF159237)
Defendant and Appellant.
W.L. appeals from a disposition order committing him to
the Department of Corrections and Rehabilitation, Division of
Juvenile Justice (DJJ). His contention that the juvenile court
failed to properly consider less restrictive commitments is
unsupported by the record, so we affirm.
BACKGROUND
The Crime and Conviction
M.B. was walking home from a party late at night when
three males forced her into a house, tried to force her to drink
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alcohol, and raped her repeatedly over the course of some three to
four hours.1 W.L., who was 16 years old, was one of them.
W.L. was tried as an adult and found guilty of rape in
concert, with the circumstance that the victim was kidnaped in
the commission of the offense. This court conditionally reversed
the judgment pursuant to an intervening change in the law and
remanded the case to the juvenile court for a hearing to
determine whether it should proceed in juvenile or adult court.
In light of the nature of the crime and W.L.’s lack of insight, the
juvenile court ordered that he remain in custody pending the
transfer hearing for his own protection and that of the public.
The Transfer Hearing
The prosecution moved to transfer the case to adult court.
The Del Norte County probation department (department)
recommended that W.L., then 21, be transferred to adult court.
Although the department believed there was sufficient time for
W.L. to be rehabilitated before the juvenile court’s jurisdiction
terminated when he turned 25, it was uncertain whether
rehabilitation was possible. The report explained: “The
seriousness and gravity of the offense and the severity of the
trauma imposed on the victim suggest that this matter was
appropriately addressed in criminal court and should remain in
criminal court. By the non-minor’s actions in the offense,
kidnapping in concert, attempting to intoxicate the victim in
1The incident is described in greater detail in our opinion
in W.L.’s previous appeal, People v. W.L. (Dec. 11, 2018,
A149231)[nonpub. opn.].
2
concert, refusing to allow the victim to use the restroom or leave
his home, raping the victim over and over, and then telling her
not to report the incident to police, he appears to show a higher
degree of criminal sophistication. Someone with this level of
sophistication knew what he was doing was wrong from the
beginning and chose to continue to act in such a manner.”
In opposition to transfer, W.L. submitted the expert report
of psychiatrist Dr. Anne McBride, an assistant clinical professor
with the UC Davis Medical Center Department of Psychiatry and
Behavioral Sciences. Dr. McBride opined that W.L. could be
rehabilitated in the juvenile justice system because very few risk
factors contributed to his offense. “The most notable risk factor
included his youthfulness and developmental immaturity. He
was raised in a stable environment, absent of maltreatment and
violence, with strong family support. His risk-taking behavior
was limited to adolescence. He has not continued to engage in
negative behaviors, has been entirely compliant in custody,
responsive to treatment, and free of violence or discipline. The
features of youth which contributed to his offense are ones he has
already demonstrated growth and maturity during his
incarceration, reflective of his continued capacity for growth and
maturation.”
“The remaining risk factors applicable to [W.L.] include his
response to the offense such as his lack of accepting responsibility
which contributes to problems in remorse and empathy related to
the offense. [W.L.] has maintained his innocence throughout his
case and has otherwise demonstrated a pattern of behavior and
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relationships that indicates a clear capacity for age-appropriate
empathy and remorse. Regardless, these risk factors are
typically the focus of juvenile sexual offender treatment. Given
his low risk for future general and sexual violence, in my medical
opinion, [W.L.] can be managed in the community rather than in
a custodial setting. Treatment is readily available in the
community and appropriate to address ongoing risk factors
effectively.” Nonetheless, Dr. McBride did not identify what, if
any, resources were available in the community to treat and to
rehabilitate him.
In the interview with Dr. McBride, W.L. said, “I’m
innocent” and that [M.G.] had consensual sexual intercourse with
each of the three males, none of whom “would force themselves
upon anybody.” In response to a question about the victim’s
reaction to sexual intercourse with him, W.L. said, “She was
enjoying it. I could tell she was. She was expressing her
pleasures. . . . She never once told me to stop.” W.L.’s mother,
interviewed by Dr. McBride, blamed the victim for the offense
and confirmed that W.L. believed he was innocent.
At the transfer hearing, the prosecution argued that W.L.
could not be rehabilitated in juvenile court and should therefore
be treated as an adult offender: “[H]e is 21 now. And the Court
has the jurisdiction until he is 25. And I think there is [sic]
limited programs and I don’t think he can be rehabilitated.”
The juvenile court found the prosecution had not met its
burden of proof, denied the transfer motion, and set the matter
for a disposition hearing.
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The Disposition Hearing
The department’s disposition report recommended
commitment to the DJJ. It advised: “[W.L.] scores low-moderate
for risk to reoffend. Juvenile probation is focused on
rehabilitation and addressing the needs of the individual. While
the non-minor has been incarcerated for nearly four (4) years, the
crime he is now adjudicated on is heinous and requires
completion of an appropriate sexual offender treatment program
before being able to be returned to the community and considered
to have met the rehabilitative goal of probation.
“Due to the non-minor’s age, he is not eligible for a short
term residential treatment program . . . focused on sexual
offender treatment. The Probation Department believes the
non-minor would best receive rehabilitative services related to
the crime at the [DJJ]. This recommendation was not taken
lightly after reviewing a copy of Dr. Anne McBride[’s] case file
review of the non-minor and her conclusions. However, DJJ is
the most adequate place to provide rehabilitative services to the
non-minor. DJJ will continue to provide structure and support
while offering programs specific to the non-minor’s sexual
offending behavior.
“While at DJJ, the non-minor will receive a comprehensive
assessment which will result in the development of the
non-minor’s initial individualized treatment plan. This
assessment will focus on outlining individual dynamic risks as
well as treatment objectives for progress in the program and the
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objectives that should be accomplished for successful completion
of their sex behavior treatment program.
“While in this residential treatment program at DJJ, the
non-minor will engage in group therapy, individual therapy,
psycho educational resource groups, complete journals/
homework, experiential stage group therapeutic exercises, and
biblio-therapy. The non-minor has reported numerous times of
having to be selective in programs he chooses to participate in
while incarcerated due to having to disclose the nature of the
offense which led him to prison and the fear of his safety after he
previously was targeted and assaulted within a few days of
arriving at San Quentin. DJJ will provide these services to the
non-minor in a safe environment where he will be around other
offenders with similar committed offenses.”
The prosecutor filed a brief urging that W.L. be committed
to DJJ until age 25 for rehabilitation, for the public’s protection,
and to redress the victim’s injuries. Like the department, the
prosecutor believed W.L. was in need of the DJJ’s intensive sex
offender treatment program, a “therapeutic community living
unit totally devoted to the comprehensive treatment of the
resident,” which typically takes at least two years to complete.
The prosecutor emphasized the nature and gravity of W.L.’s
crime, his continued denial of culpability in the face of
incontrovertible evidence, his lack of remorse and empathy, and
his blaming his actions on the victim for purportedly being
intoxicated, instigating the sexual encounter, and “lying at trial.”
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“Without such [a] program,” the prosecutor cautioned, “[W.L.] is
doomed to repeat the same behaviors and put the public at risk.”
Addressing the availability of other disposition options
beyond the DJJ program, the prosecutor wrote, “there are no
known group home[s] or outside programming that the People
are aware of that would adequately treat him and protect society.
[W.L.] would be a danger to the community if he were released as
he failed to understand his actions were wrong. He can’t take
responsibility for his crime despite being convicted and spending
time in prison and it is clear he will not take responsibilit[y] for
his action if he is released. There are no sex offender group
homes available for individuals over the age of 18. [W.L.] needs
more than just [an] hour therapy session once a week. As the
court is aware per a recent local case, our jail refuses to confine a
person, and release a person with a pass to see [a] therapist. As
the court is also aware, there were no sex therapists that were
willing or able to successfully come to Del Norte Jail to provide
therapy. Due to the defendant’s repeated denials, lack of
empathy, callousness, extreme indifference, and victim blaming it
is evident he is in need of intense treatment, the kind that DJJ
can provide.”
At the outset of the scheduled disposition hearing on July
16, 2020, the defense successfully requested a continuance
because “given the current pandemic situation, the defense has
had a very difficult time preparing in the sense of securing the
proper treatment admissions for [W.L.] that we are requesting to
present to the court.”
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W.L. submitted a memorandum advocating for release to
probation on time served and placement in a home-like,
community-based setting. He argued that this was in line with
current law and science and served his best interests “because it
brings with it important treatment and services that help
promote rehabilitation and, consequently, public safety. By
ordering probation, the court will be able to leverage resources for
[W.L.]. As an example, the Juvenile Probation Department may
assist [W.L.] during the time remaining in planning for his
future. This may include college planning.” W.L. added that the
juvenile court had “several tools” to ensure that a disposition of
wardship and time served would ensure that he would be “in the
most appropriate setting with the services and supports needed
to help him succeed.” However, W.L. did not identify any specific
“tools,” placements or programs.
The continued disposition hearing took place on August 26,
2020. The prosecutor reiterated her view that a DJJ
commitment presented the best possibility for rehabilitation.
W.L. continued to blame the victim and deny responsibility for
his actions even after engaging in individual counseling, AA
meetings, and other programming. His lack of insight, remorse,
and empathy required the “deep programming and counseling”
DJJ offered. On the other hand, the prosecutor warned, releasing
W.L. to the custody of the family that believed he was innocent
and supported his minimization of his crime “would reinforce his
belief and lack of accountability that he did anything wrong.”
Observing that W.L.’s family and counsel had been
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unsuccessfully searching for community-based sex offender
programs for some eight months, the prosecutor reiterated that
such “programs don’t exist.” “Just to send him out in the
community with the hope willy-nilly that his family is going to
keep him [on] the straight and narrow, is not addressing the
problems this minor has in rehabilitating so it doesn’t happen
again.”
DJJ, in contrast, offered an intensive sex-offender
treatment program that W.L. could start immediately. And while
W.L. had avoided participating in sex offender programs in
prison for fear of reprisals from other prisoners, the probation
officer explained that the DJJ program took place in a safe
environment, with other offenders who had committed similar
offenses.
Defense counsel continued to urge rehabilitation in the
community in light of the length of W.L.’s incarceration; his
participation in classes, AA meetings and religious activities; his
good record while incarcerated; and his supportive family and
community. Counsel acknowledged that W.L. “maintains his
innocence” and that there were no available private treatment
programs, but asserted generally and without elaboration that
the department “has the means of providing those services.”
W.L.’s parents also spoke at the hearing. His mother and
father told the court they would do everything in their power to
help their son. W.L.’s mother said she would “do all my best to
locate programs to rehabilitate him and if I can’t find any
program available due to the conditions in the world right now,
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I’ll do my best to take him to church and to follow a model from
the church, from the pastor.”
Toward the end of the hearing, W.L.’s attorney asked the
probation officer whether there were any sex offender treatment
classes that the department currently used for other inmates.
The officer responded that she worked on the juvenile side of the
department and could not speak on behalf of anyone over age 18,
but she was aware the department utilized one program in
Eureka, Narum & Associates, which worked primarily with
adults and employed an intensive intake process to decide if the
program was appropriate for the applicant. However, the
program operated solely on an outpatient basis and would not
provide services to incarcerated offenders.
The probation officer concluded, “Here we are with
somebody who is 22 years old and we are looking at rehabilitation
and how do we do that under juvenile court . . . . And I can’t
speak on behalf of programming because there aren’t any. [¶]
DJJ offers the best programming source for sex offenders. They
have a very thorough program.”
The prosecutor emphasized that no sex offender counseling
for incarcerated adults was available in the county, and that
releasing W.L. into the community without “having substantial
treatment under his belt would be a problem.”
The court agreed with the prosecutor and the department.
In a detailed ruling from the bench, it observed that “we sit here
today in probably one of the most impoverished counties that has
a lack of services for sex offender treatment.
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“Fortunately [W.L.] has been given a chance by the
California State Legislature to rehabilitate and that’s why he is
here. So to answer the parents’ concerns, he has the opportunity
to rehabilitation, the problem is what is available in this county?
And throughout the years since I have been here it’s gotten worse
and worse as the county has gotten more impoverished.
“I’m aware of Narum & Associates, but they recently
retired. There are new folks that have taken over. I have no
idea. And they have not accepted any juvenile clients that I’m
aware of. And that’s a problem that has not been discussed. And
I have not had anyone go through the program because of these
issues. And Covid on top of all of it, they have been essentially
shut down. I’m aware that they’re not an accelerated program,
nor intensive. They meet once a week.
“And here, due to this delay, I have a young man that needs
treatment. He is 22. And the hold is listed at 25, which means
he needs to get treatment in an accelerated quick manner.
“It appears to me that the only viable programming that we
have in this community is DJJ. I looked at it. And I have read
the documents provided. They are an extremely intensive, full-
time program, literally every day as opposed to once every other
week or once a week for an hour, which is what Narum &
Associate does, a one-hour, once-a-week program. And they are
designed to handle people who have yet to come to terms with
what’s occurring, designed to handle even the youth predators or
whatnot. And they are given their own caseworker and specialist
and they have three psychs on staff, given an opportunity to go to
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junior college, trade schools, construction, computer coding,
software training, etcetera. They provide a reentry program as
well as heavy substance-abuse programming.
“It seems like that’s the only option that is left to the Court
at this juncture because I don’t know if Narum & Associates
would approve of [W.L.] as we sit here now, eight months after
the finding that he is an appropriate candidate. Things might
have been better if this had proceeded forthwith and quicker
before the retirement of Narum & Associates, Gil Narum, back in
June or before that.
“Here I am left with very little options and I want [W.L.] to
be rehabilitated which is the goal of the juvenile court, not
punishment. And there are many youngsters that can work the
program quick and some don’t. But one way or the other, [W.L.]
should be afforded the opportunity to rehabilitate and reintegrate
into society.”
The court committed W.L. to the DJJ with a maximum
term of imprisonment of 25 years. The court and parties
acknowledged he would be released by age 25 or sooner. W.L.
filed a timely notice of appeal.
DISCUSSION
W.L. contends the juvenile court abused its discretion by
committing him to the DJJ without considering less restrictive
placements. The record contains substantial evidence that no
appropriate less restrictive rehabilitation programs were
available, so we affirm.
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Legal Principles
“The purpose of juvenile delinquency laws is twofold: (1) to
serve the ‘best interests’ of the delinquent ward by providing
care, treatment, and guidance to rehabilitate the ward and
‘enable him or her to be a law-abiding and productive member of
his or her family and the community,’ and (2) to ‘provide for the
protection and safety of the public . . . .’ (Welf. & Inst. Code,
§ 202, subds. (a), (b) & (d); [citations].).” (In re Charles G. (2004)
115 Cal.App.4th 608, 614–615.)
“The appellate court reviews a commitment decision for
abuse of discretion, indulging all reasonable inferences to support
the juvenile court's decision. [Citations.] Nonetheless, there
must be evidence in the record demonstrating both a probable
benefit to the minor by a [DJJ] commitment and the
inappropriateness or ineffectiveness of less restrictive
alternatives. [Citations.] A [DJJ] commitment may be
considered, however, without previous resort to less restrictive
placements” (In re Angela M. (2003) 111 Cal.App.4th 1392,
1396), and the juvenile court may properly consider a restrictive
commitment as a means of protecting the public safety. (In re
Carlos J. (2018) 22 Cal.App.5th 1, 6.) Moreover, “ ‘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 Nicole H.
(2016) 244 Cal.App.4th 1150, 1159.)
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Analysis
In the present case, W.L. does not claim that evidence of
probable benefit to him from a DJJ commitment is lacking.
Rather, he argues only that there is insufficient evidence to show
the court considered and rejected less restrictive alternatives.
We disagree. Preliminarily, the record contradicts W.L.’s
apparent position that there was no evidence the DJJ
commitment was justified as a means of protecting the public
safety. Upon remand from this court, the juvenile court found in
light of the nature of the crime and W.L.’s lack of insight that the
public safety required his continued confinement pending the
transfer hearing. That finding is amply supported by the record.
It is undisputed—W.L., his mother and his attorney all agree—
that five years after the offense, W.L. proclaimed his innocence
and that the victim “was enjoying it.” W.L. sought to be released
on probation into the custody of his mother, who blamed the
victim for the events, and his father, who offered no proposal for a
treatment program.
As noted above, W.L.’s expert acknowledged that his failure
to accept responsibility for raping the victim “which contributes
to problems in remorse and empathy related to the offense”
presented a risk factor for reoffense. The severity of W.L.’s
offense and his complete denial of responsibility for his actions,
neither of which had changed in the interim, equally support a
finding that a restrictive DJJ commitment remained necessary to
protect the public safety during his rehabilitation. (See In re
Shaputis (2011) 53 Cal.4th 192, 218 [presence or absence of
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insight, including remorse, is a significant factor in determining
whether there is a rational nexus between dangerous past
behavior and the threat of reoffense].)
While these considerations adequately support the juvenile
court’s disposition choice, the record also supports the
determination that no appropriate, less restrictive programs were
available. Although W.L. asserts that there is no evidence that
“less restrictive alternative placements were considered and
rejected,” the assertion ignores the record. The department
believed W.L. needed to complete a comprehensive sex offender
program before he could be considered rehabilitated and returned
to the community, and the DJJ program was the “most adequate”
place for that. Further, W.L. was ineligible for any short-term
residential sexual offender treatment programs, and the
prosecutor advised the court that there were no group homes
available for sex offenders over age 18. Although the department
had occasionally utilized the Narum & Associates program, which
worked primarily with adults, that program had been “essentially
shut down” due to the pandemic, offered only out-patient
treatment an hour a week, and would not provide even that to
incarcerated offenders. Finally, defense counsel reported that he
and W.L.’s brother searched extensively for alternative programs
W.L. could attend if the court ordered probation, but found
nothing.2
2 All of this, we observe, is sadly consistent with the
juvenile court’s observation that Del Norte County has a dearth
of services for sex offenders.
15
In this regard, W.L.’s reliance on In re N.C. (2019)
39 Cal.App.5th 81, 88, is unpersuasive. There, the juvenile court
considered placing the minor in several alternative programs and
explained why it found each one inadequate. Here, the
information from the department, the prosecution, and W.L.
confirmed that the county simply had no adequate alternatives to
the DJJ for an offender with W.L.’s rehabilitative needs. The
juvenile court was not required to locate an appropriate
treatment program or to evaluate unavailable juvenile sex
offender programs.
W.L. argues that a less restrictive, presumably community-
based, placement would have allowed him to benefit from being
closer to his large, supportive family; that he had tested low on a
juvenile sexual offense recidivism risk assessment tool; and that
he had already served significant time in prison “where he
willingly participated in numerous programs for self-
improvement.” The family with whom he proposed to reside
included a mother who blamed the rape on the victim and
parents who could not identify any appropriate treatment, and—
if none could be found—would take him to church. And the self-
improvement programs had not modified his view that the victim
participated willingly in sexual intercourse with three strangers.
As observed in In re N.C., supra, 39 Cal.App.5th at p. 87,
“conflicting evidence . . . does not render the juvenile court’s
commitment order an abuse of discretion or warrant its reversal.
As stated above, our role on appeal is to determine whether the
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juvenile court’s order is reasonably grounded in the record, not to
reweigh the evidence in the record.” We conclude that it is.
W.L. also asserts, for the first time on appeal, that the
court erred by failing to consider programs designed for adult
rather than juvenile offenders or located outside of Del Norte
County. We will not address those claims because W.L. forfeited
them by failing to raise them in the juvenile court, where they
could have been addressed. (See In re Travis W. (2003)
107 Cal.App.4th 368, 379 [failure to object to defects in the
probation report]; In re Dakota S. (2000) 85 Cal.App.4th 494,
501–502 [failure to object to absence of statutorily required
assessment of a prospective guardian]; People v. Welch (1993)
5 Cal.4th 228, 234–235 [failure to object to errors or omissions in
probation report or conditions].)
Indulging all reasonable inferences to support the juvenile
court's decision, we conclude it reasonably determined there were
no appropriate less restrictive alternatives to a DJJ commitment.
DISPOSITION
The disposition order is affirmed.
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_________________________
Ross, J. *
WE CONCUR:
_________________________
Pollak, P.J.
_________________________
Streeter, J.
A160886 People v. W.L.
*Judge of the San Francisco Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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