In re S.R.

Filed 3/30/20; Modified and Certified for Pub. 4/23/20 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re S.R., a Person Coming B300214
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 19CCJP02321)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
JUSTIN R.,
Defendant and Appellant.
APPEAL from a dispositional order of the Superior Court of
Los Angeles County, Philip L. Soto, Judge. Affirmed.
Cristina Gabrielidis, under appointment by the
Court of Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kristine P. Miles,
Assistant County Counsel, and O. Raquel Ramirez,
Deputy County Counsel, for Plaintiff and Respondent.
____________________
The Los Angeles County Department of Children and
Family Services (DCFS) initiated juvenile dependency
proceedings concerning ten-year-old S.R. based on her father’s
(Justin R.’s) possession of child pornography in the child’s home.
The evidence presented below shows that several of the images
Justin R. possessed depicted young females around S.R.’s age
engaged in various sexual acts, and that one of the images may
have depicted a father having sexual relations with his
prepubescent daughter. After the juvenile dependency
proceedings began, Justin R. suffered a felony conviction arising
from his possession of the child pornography. The juvenile court
later sustained the dependency petition’s jurisdictional
allegations against Justin R., removed S.R. from his physical
custody, and authorized Justin R. to have monitored visits with
S.R.
Although Justin R. does not challenge the juvenile court’s
assertion of jurisdiction on appeal, he does contest the
dispositional ruling removing S.R. from his custody.1
1 In the opening brief, Justin R.’s appellate counsel
questioned the propriety of the juvenile court’s assertion of
jurisdiction, “but believe[d] that [his trial counsel’s] concession
forfeited any jurisdictional argument on appeal.” In his reply,
however, Justin R.’s appellate counsel clarified that the attorney
“did not contest jurisdiction” in the opening brief, but counsel “is
more than happy to submit supplemental briefing on the issue of
jurisdiction if this [c]ourt deems the issue not forfeited and so
2
Specifically, he argues that his mere possession of child
pornography does not demonstrate that he poses a substantial
risk of harm to his daughter.
We disagree. The Supreme Court has held that
“ ‘even . . . a low degree of probability’ ” can give rise to a
substantial risk if “ ‘the magnitude of the harm is potentially
great.’ ” (See In re I.J. (2013) 56 Cal. 4th 766, 778 (I.J.).) Here,
viewing the record in the light most favorable to the dispositional
order (as we must), we conclude there is substantial evidence of
risk of great harm to S.R.—no matter how low the probability—
that Justin R. will sexually abuse his daughter if he is provided
unfettered access to her. Accordingly, we affirm the juvenile
court’s dispositional order.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize only those facts that are relevant to the
instant appeal.
desires.” Because Justin R. has failed to raise properly
any jurisdictional challenge or defense to forfeiture, we
need not address these issues further. (See In re J.F. (2019)
39 Cal. App. 5th 70, 79 [“The juvenile court’s orders are ‘presumed
to be correct, and it is appellant’s burden to affirmatively show
error.’ [Citations.] ‘ “Appellate briefs must provide argument
and legal authority for the positions taken.” [Citation.] “When
an appellant fails to raise a point, or asserts it but fails to support
it with reasoned argument and citations to authority, we treat
the point as waived,” ’ ” first bracketed insertion added].)
3
1. The initial dependency petition, its supporting
documents, and the detention hearing
On April 12, 2019, DCFS filed a juvenile dependency
petition concerning ten-year-old S.R. The petition alleged that
jurisdiction was proper under Welfare and Institutions Code
section 300, subdivisions (b)(1) and (d),2 and asserted two counts
against Justin R. Counts b-1 and d-1 of the petition each alleged
the following: “[S.R.’s] father, Justin R[.], created a detrimental
and endangering home environment for the child in that the
father possessed child pornography on an external hard drive, in
the child’s home, within access of the child. Such a detrimental
and endangering home environment established for the child by
the father endangers the child’s physical health, safety and
well-being and places the child at risk of serious physical harm,
damage, danger and sexual abuse.” S.R.’s mother (mother)
was not named as an offending parent under the petition.
On April 12, 2019, DCFS also filed a detention report and
an addendum report.
2 Undesignated statutory citations are to the Welfare and
Institutions Code. Section 300, subdivision (b)(1) provides in
pertinent part that juvenile dependency jurisdiction is proper if:
“The child has suffered or there is a substantial risk that the
child will suffer, serious physical harm or illness, as a result of
the failure or inability of his or her parent or guardian to
adequately supervise or protect the child . . . .” (§ 300,
subd. (b)(1).) Subdivision (d) provides in relevant part that
jurisdiction is proper if: “The child has been sexually abused, or
there is a substantial risk that the child will be sexually abused,
as defined in Section 11165.1 of the Penal Code, by his or her
parent or guardian or a member of his or her household . . . .”
(§ 300, subd. (d).)
4
The detention report asserts that on April 10, 2019, police
arrested Justin R. at his, mother’s, and S.R.’s family home after
Justin R. admitted to officers that certain child pornography
found on a computer had belonged to him.3 Later that day,
DCFS interviewed mother, S.R., and Justin R.
Mother stated that she and Justin R. have been married for
12 years and S.R. is their only child. Mother reported she and
Justin R. “are together only for [S.R.]”; she claimed that Justin R.
sleeps on the couch downstairs and the two of them “no longer
share a sexual relationship because he is impotent.” Mother
expressed her concern that Justin R. is the family’s only source of
income because she does not work. Nonetheless, she insisted
that Justin R. “will not be coming back to her home, even if he
[is] bail[ed] out of jail.” She “denied any concerns . . . . that
[Justin R.] has sexually abused [S.R.].” Mother also “denied
having any knowledge of what [Justin R.] was searching [for] on
his computer.”
During her interview with DCFS, S.R. “denied all types of
abuse and neglect.” In addition, she “denied [that anyone had]
sexually abus[ed] her, or show[ed] her nude photographs of
others, expos[ed] themselves to her, or t[ook] nude/explicit
photographs of herself.” “[S.R.] stated that if this were to
happen[,] she would tell . . . mother or [Justin R.]”
Justin R. told DCFS that “he never admitted to [law
enforcement] that he watches child porn[ography] and had child
porn[ography] on his electronics.” He stated he watched
pornography “once every day,” but claimed that he “ ‘watch[es]
3The remainder of this paragraph and the following four
paragraphs summarize pertinent aspects of the detention report.
5
regular porn.’ ” Justin R. represented that, “when he watches
porn[ography] he is away from everyone else[;] . . . . [he] stated
he usually watches porn when everyone is sleeping” and “he
would never watch porn on [S.R.’s] electronic devices.” “[He] gave
[DCFS] verbal consent to detain the child from [him]” and
“agreed not to return to the home.”
Shortly after DCFS interviewed Justin R., mother reported
to DCFS that she and Justin R.’s sister intended to bail Justin R.
out of jail. Mother told DCFS that Justin R. was “going to get all
of his belongings and move in with [his sister].”
In the addendum report, DCFS recommended that S.R.
remain in mother’s home, and that Justin R. receive monitored
visits with the child. DCFS also reported that “[Justin R.] was
released from jail on bond on 04/10/2019.”
On April 15, 2019, the juvenile court held a detention
hearing. At the hearing, Justin R. entered a general denial to the
petition. The juvenile court found a prima facie case for
detaining S.R. from Justin R., and ordered that S.R. be released
to mother and receive monitored visits from Justin R.
Additionally, the juvenile court barred Justin R. from living in
mother’s and S.R.’s home.
2. The jurisdiction/disposition report
On May 9, 2019, DCFS filed a jurisdiction/disposition
report. The report states that the police seized two devices from
the family’s home: a laptop computer and an external hard drive.
Mother and Justin R. each told DCFS that S.R. did not have
access to either of these devices. Also, “mother reported that she
does not plan on obtaining a divorce from [Justin R., and]
indicated that she would like to resume their living arrangement
while [Justin R.] receives treatment/services.”
6
3. The first amended petition
On May 17, 2019, DCFS filed the first amended petition.
The pleading amended counts b-1 and d-1 to allege that Justin R.
possessed child pornography on not only an external hard drive,
but also on a laptop computer. Specifically, each count avers:
“[S.R.’]s father, Justin R[.], created a detrimental and
endangering home environment for the child in that the father
possessed child pornography on an external hard drive and
laptop computer, in the child’s home, within access of the child.
Such a detrimental and endangering home environment
established for the child by the father endangers the child’s
physical health, safety and well-being and places the child at risk
of serious physical harm, damage, danger and sexual abuse.”
The first amended petition did not otherwise differ from the
original petition in any material respect.
On May 20, 2019, Justin R. entered a denial to the first
amended petition.4
4. The police reports
On June 4, 2019, DCFS filed a last minute information,
along with certain police reports, including (inter alia) an arrest
report, a follow-up investigation report, and a forensic
examination report.
4 The record indicates that mother entered a denial to the
first amended petition as well, even though it does not name her
as an offending parent. In any event, mother is not a party to
this appeal.
7
According to the arrest report, Tumblr5 reported to the
National Center for Missing and Exploited Children (NCMEC)
that in November 2018, one of Tumblr’s users utilized its server
to upload certain videos depicting child pornography; the
NCMEC forwarded that report to the Los Angeles Police
Department (LAPD).6 One of the videos shows a nude girl,
approximately seven years of age, lying on a bed; kneeling in
front of her is a nude adult male who rubs his erect penis on the
young girl’s vagina and begins to ejaculate on her stomach. The
second video shows a young child lying face down on a bed as an
adult male “ha[s] intercourse with or sodomize[s] the child from
behind” and the child moans and cries. The LAPD’s investigation
revealed that the Internet Protocol Address associated with the
user who uploaded the videos belonged to Justin R.
On April 10, 2019, the LAPD executed a search warrant at
Justin R.’s residence. During the search, the LAPD retrieved a
laptop computer and an external hard drive; Justin R. admitted
that both of those devices belonged to him. The LAPD arrested
Justin R. and seized the laptop and the hard drive.
The follow-up investigation report indicates that the seized
external hard drive contained images showing female children
under 12 years of age posing nude and engaging in various sexual
acts with adults. According to the follow-up report, Justin R. told
5 According to the comprehensive psychological and risk
assessment report discussed post, Tumblr is “a microblogging and
social network website which allows users to post multimedia
and other content to a short form blog.”
6 The remainder of this paragraph and the following
paragraph summarize certain relevant contents of the arrest
report.
8
LAPD officers on April 10, 2019 that he has never had a Tumblr
account and that “[o]utside of his prior employment with the Los
Angeles County Police, . . . he has not seen [c]hild [p]ornography.”
The forensic examination report states that police
ultimately found “approximately six hundred fourteen images
and fifty-four videos of [c]hild [p]ornography” on Justin R.’s
external hard drive. Furthermore, the report indicates that
“[o]ver one thousand downloads between the dates of May[ ] 2010
through March[ ] 2014 were discovered on” the external hard
drive, the “majority” of which had “file names indicative of [child
pornography],” including “ ‘Pthc animal sex young girl dog
remastered’ ” and “ ‘pedo-11 yo girl fucked dad.’ ” The report
further claims that “[a]pproximately one hundred ninety-two
images of [child pornography] were recovered from” the laptop
computer police had seized.
5. Dr. Crespo’s opinion letter
On June 4, 2019, DCFS filed a last minute
information report, to which a May 31, 2019 opinion letter
from Alfredo E. Crespo, Ph.D. was attached. Dr. Crespo reviewed
the detention report, the jurisdiction/disposition report, and an
article titled “The ‘Butner Study’ Redux: A Report of the
Incidence of Hands-on Child Victimization by Child Pornography
Offenders” (Butner Study) for the purposes of ascertaining
whether Justin R. “presents a ‘substantial risk of harm’ ” to S.R.
Dr. Crespo prefaced the letter with the following caveat: “This
assignment was accepted with the proviso that any opinions
expressed should be considered limited by the absence of
psychological evaluations of the minor and her parents.”
“In [Dr. Crespo’s] opinion, the present review of documents
in the present matter suggests that the [c]ourt should find that
9
[Justin R.] may, more likely than not, pose a risk of a substantial
harm to his own daughter. An active sexual interest in children
reflected in the possession of child pornography is rarely, at least
among convicted offenders, limited to only viewing such
pornography.” The doctor noted that the Butner Study indicated
there is a “high incidence of ‘hands-on’ child sexual abuse among
men convicted only of possession of child pornography.”
Dr. Crespo further opined: “Even if [Justin R.] is
ultimately determined to be among the rare convicted owners of
‘just pictures’ who do not sexually abuse children, or [i]f the
findings of the [Butner] [S]tudy . . . [are] seen as irrelevant
because the subjects did not include incest offenders, [Justin R.]
poses a risk of emotional abuse inherent in the sexualized climate
that inappropriate sexual fantasies regarding children
created . . . .”
6. Dr. Malinek’s comprehensive psychological and risk
assessment report
On August 15, 2019, Justin R. filed a comprehensive
psychological and risk assessment report dated July 23, 2019,
which was prepared by Dr. Hy Malinek, PsyD, a licensed
psychologist. Dr. Malinek interviewed and tested Justin R. for
approximately four hours on May 3, 2019, at which time
Dr. Malinek “conducted a mental status examination, obtained
relevant psychosocial and psychosexual history and administered
two personality tests.” “In assessing the risk that [Justin R.]
would reoffend, [Dr. Malinek] scored the Child Pornography
Offender Risk Tool (CPORT), a relatively new actuarial
(statistical) measure for the assessment of recidivism among
child pornography offenders,” and “consulted the latest research
on child pornography offenders.” Dr. Malinek also reviewed
10
certain documents relating to Justin R.’s criminal proceedings
(e.g., the arrest and follow-up investigation reports and
Justin R.’s “computerized rap sheet”), along with progress reports
from two therapists who had seen Justin R. (i.e., Lisa Richards
and Lisa Howe). Additionally, Dr. Malinek interviewed a foster
mother who had cared for Justin R. from the age of eight and a
half to the age of eighteen.
Justin R. reported to Dr. Malinek that he lived in foster
homes from the age of three until he reached the age of majority.
Justin R. stated that after reaching adulthood, he served as an
officer in the National Guard and had “participated in combat” in
Iraq in 2004 and 2005. When Dr. Malinek asked Justin R. “about
the emotional impact of his military service and exposure to
combat and loss of life,” Justin R. responded, “ ‘I was so busy I
did not think about my emotions.’ ”
“[Justin R.] readily acknowledged that after his marriage
‘went down’ he began looking for pornography” on the Internet.
“He stated that he has never acquired a file sharing program,
however, and believes that child pornography ‘slipped in there
with the shock stuff by accident[,]’[ ] or while he was in a chat
room.” Justin R. admitted to viewing pornography on Tumblr
“and often clicking on ‘random categories or some pages where
there was child pornography.’ ” “He acknowledged that there
may have been images of prepubescent children in his
possession.” Justin R. insisted, “ ‘If there was any distribution on
my end, it was accidental. I’m not into children. I would do
things for shock, and would look for the adrenaline rush
online.’ ”7
7 Yet, the report indicates that Richards told Dr. Malinek
that “[Justin R.] described himself as ‘compartmentalizing’
different facets of his life and acknowledged an extreme addiction
11
Dr. Malinek opined that: “It certainly appears that
[Justin R.’s] habit of watching pornography drew quite a bit from
habituation to mainstream pornography, frustrated needs for
intimacy, sexual preoccupations and long-term marital problems.
In all likelihood, [Justin R.] has looked to sexual fantasy and
‘extreme’ images online in an effort to sooth [sic] himself, and
distance himself from feelings of anger or inadequacy he had
trouble articulating, recognizing or confronting.” The doctor
diagnosed Justin R. with post-traumatic stress disorder and
adjustment disorder with anxiety and depression.
Dr. Malinek further opined, “[Justin R.] is certainly a
‘fantasy driven’ and not a ‘contact driven’ offender.” “The first
group [of possessors of child pornography (i.e., fantasy-driven
offenders)] essentially involves individuals who look for child
pornography for the purpose of sexual gratification and
masturbation whereas the second [group of possessors [(i.e.,
contact-driven offenders)] is more driven by a wish to have
‘hands-on’ contact with an individual.”8 Dr. Malinek noted that
certain studies indicate that “ ‘hands-off ’ offenders do not
inevitably hold dysfunctional attitudes and beliefs related to
sexual contact with adults and children that have been found to
be criminogenic.”
Dr. Malinek concluded that Justin R. “obtained a score of 1
on the CPO[R]T” (on a scale of 0 to 7) and had an “expected
recidivism rate” of “five percent in five years.” (Boldface omitted.)
to pornography, which eventually involved being sexually aroused
by images of minor children.” (Italics added.)
8 Dr. Malinek further claimed that, “[w]hile it may sound
‘counter[-i]ntuitive,’ studies have repeatedly shown that the vast
majority of [child] pornography possessors do not go on to commit
‘hands on’ sexual contact with children.”
12
Dr. Malinek claimed that this score “does not designate
[Justin R.] as a high-risk offender.” The doctor nonetheless
conceded that “[t]ranslating the CPORT scores to risk level[s] is
quite difficult” because the model does not “yet have a large
enough sample size for reliable recidivism estimates” and “there
is an insufficient range of scores to meaningfully distinguish risk
levels.”
Dr. Malinek also found that his “[a]nalysis of research
supported risk factors associated with recidivism among child
pornography offenders denotes a low risk.”9 Dr. Malinek noted
that Justin R.’s “prior criminal history is minimal, . . . he has
no history of sexual misconduct, and . . . he has never
attempted any ‘hands on’ contact with a child.” The doctor
observed: “[Justin R.] does not impress me or test as narcissistic,
exploitative, psychopathic or prone to violence. Many of the
criminological risk factors which have been associated with
repeat offenses are absent in this case (for example, substance
abuse, negative peer group, high psychopathy).” Dr. Malinek
further claimed that Justin R. “has taken responsibility for his
conduct and has been involved in psychotherapy where he is
described as engaged and motivated.” The expert also “doubt[ed]
that [Justin R.] is pedophiliclly [sic] inclined and note[d] that he
has maintain[ed] sexual interest and involvement with adults.”
9 Dr. Malinek explained that the CPORT model considers
certain “items” to “be most predictive of recidivism among child
pornography collectors,” including: “age below 35, any prior
criminal history, any prior contact sexual offense history, any
conditional release failures, admission of pedophillic [sic] [or]
hebephillic [sic] sexual interests, and a large proportion of males
(versus females) in child pornography.”
13
Dr. Malinek acknowledged Justin R. “has a way to go in
developing some insight about his coping mechanisms, in
working through some of his earlier trauma, in understanding
the reason he has turned to and became addicted to pornography
in the first place, and in developing satisfying intimate
relationships.” (Italics added.) He further opined, “[s]hould
[Justin R.] continue to receive treatment and be tightly
monitored, the likelihood that he would recidivate would probably
decrease even further.” (Italics added.) Indeed, the expert
explicitly recommended that Justin R. undergo “tight monitoring
and individual psychotherapy, as well as [have] sex offender
treatment continue for the foreseeable future.” Dr. Malinek
“hope[d] [Justin R.] will utilize treatment to get in touch with the
feelings and experiences that have led him to possess and
distribute child pornography, work through some of the traumas
associated with his earlier family history and war experiences,
and . . . develop and solidify healthy and appropriate
relationships as well as safeguards against recidivism.”
7. The August 15, 2019 adjudication and disposition
hearing
On August 15, 2019, the juvenile court held an adjudication
and disposition hearing at which Dr. Crespo and Dr. Malinek
offered their testimony. The juvenile court also admitted into
evidence certain documents, including the detention report and
its attachments, the jurisdiction/disposition report and its
attachments, the police reports DCFS previously filed, Dr.
Crespo’s opinion letter and the Butner Study,10 Dr. Malinek’s
10 Justin R. asked the juvenile court to strike Dr. Crespo’s
opinion letter, the Butner Study, and Dr. Crespo’s testimony.
Specifically, Justin R. argued that this evidence lacked
14
comprehensive psychological and risk assessment report, a
declaration and a progress report authored by Howe, and an
August 5, 2019 minute order from Justin R.’s criminal
proceedings (along with several other minute orders issued
during those proceedings).
The August 5, 2019 minute order from Justin R.’s criminal
case shows that on that date, Justin R. pleaded nolo contendere
to one count of violating Penal Code section 311.11,
subdivision (c)(1), and the criminal court dismissed another count
that charged Justin R. with violating Penal Code section 311.1,
subdivision (a) pursuant to a plea negotiation. The criminal
court found that “there [was] a factual basis for [Justin R.’s] plea,
and . . . accept[ed] [the] plea.” Among other things, the criminal
court suspended the imposition of Justin R.’s sentence, placed
Justin R. on probation for a period of five years, ordered Justin R.
to participate in “52[-]week sex offender counseling” and “weekly
individual counseling for one year,” and required Justin R. to
register as a convicted sex offender. The criminal court also
prohibited Justin R. from having “contact with minors except for
his own children” and from “own[ing], us[ing], or possess[ing] any
pornography.”
The remainder of this section summarizes certain pertinent
aspects of the adjudication and disposition hearing.
foundation and that Dr. Crespo “lacked the skill[,] knowledge and
training required under the Evidence Code to formulate such an
opinion” regarding the risk of Justin R. sexually abusing S.R.
The juvenile court denied Justin R.’s oral motion to strike and
admitted these two documents and Dr. Crespo’s testimony into
evidence.
15
A. Dr. Crespo’s Testimony
Justin R. called Dr. Crespo to the stand in order to cross-
examine him. Dr. Crespo testified that although he had “over
30 years of experience in doing risk assessments for the courts,”
he could “recall about no more than five [child pornography
possession] cases in which [he] was the evaluator,” and that he
handled those five cases in his private practice. Dr. Crespo
explained that the instant adjudication and disposition hearing
was the first occasion on which he offered testimony regarding
individuals possessing child pornography.
Dr. Crespo admitted that the Butner Study was the only
“research with regard to assessment of risk for individuals
convicted of possessing child pornography” that he had reviewed
in forming his opinions for this case. He acknowledged that
“whether an individual convicted of possessing child pornography
would re-offend with a hands-on sexual offense after release from
incarceration” was “not the focus” of the Butner Study. He also
admitted that the study did not specify whether its subjects had
committed any sex offenses against family members.
In addition, Dr. Crespo testified that he reviewed
Dr. Malinek’s report after he prepared the opinion letter.
Dr. Crespo stated that he had heard of the “child pornography
offender risk tool” referenced in Dr. Malinek’s report, but he did
not utilize that tool because he “did not evaluate the parties
directly.”
On redirect examination, Dr. Crespo testified that he
agreed with Dr. Malinek’s recommendation that Justin R. be
subject to tight monitoring and individual psychotherapy.
16
B. Dr. Malinek’s Testimony
Dr. Malinek testified that he is a clinical and forensic
psychologist who has evaluated sexual abuse perpetrators
“[a]pproximately 2,000 times during the last 20 years.” He stated
he is “considered an expert on risk assessment of sexual
misconduct.” He claimed to have testified “about 350 times to
400 times,” and he indicated that he has testified in juvenile
court “between 15 and 20 times during the last 20 years.”
Dr. Malinek testified that Justin R.’s “low [CPORT]
score [(i.e., his CPORT score of one)]. . . . put him in a group of
people where the vast majority, 95 or 96 [percent], do not
re-offend.” He asserted that Justin R. does not have any of
the seven “CPORT risk factors.” Although Dr. Malinek
acknowledged that it is “not yet possible to establish a risk level
[via the CPORT model] because of small sample size” and “there
is an insufficient range of scores to meaningfully distinguish risk
levels,” he opined that Justin R. “has a low score anyway you look
at it.” The doctor further opined that Justin R. was not “a risk to
his daughter.”
Dr. Malinek criticized the Butner Study. He testified that
the study “was initially not peer reviewed.” He further claimed
that “many” of the participants in the study, who were inmates in
a sex offender treatment program housed in a federal correctional
institution, “reported they felt pressured to come up with long
lists of victims,” which “exaggerated [the] number of reported
sexual offenses.” Dr. Malinek also asserted that “there’s never
been a study that replicated these figures of 85 percent of child
pornography offenders committing hands-on offenses,” and that
“multiple other studies that are current . . . have shown that the
recidivism of child pornography offenders is in the single digits.”
17
Dr. Malinek also testified there are “multiple comments by
the most prominent authorities in the field . . . that show . . . that
in the vast majority of cases, child pornography alone, in the
absence of [a] criminal history of violence, is not a predictor of
risk.” He insisted that “the vast majority of individuals who are
possessing child pornography and do not have other criminal
histories[ ] are not likely to target a child for a hands-on offense,
not cross to molesting children.”11
When asked why he had recommended that “there be[ ]
[tight] monitoring of ” Justin R., Dr. Malinek appeared to claim
that he made this recommendation simply because he “thought
psychiatric intervention was necessary” to address Justin R.’s
depression and anxiety. For instance, Dr. Malinek stated: “[S]o
I certainly believe that [Justin R.] should receive or continue to
receive emotional help or psychotherapy, but it did not change
my opinion about the harm to his kid or the prospect of he would
be [sic] dangerous to her.”
Dr. Malinek recommended that Justin R. complete a full
year of counseling and a “52-week sex abuse for perpetrator’s
program,” and acknowledged that Justin R. had not yet done so.
Yet, the doctor suggested he believed that Justin R. did not need
to undergo such treatment in order to prevent him from harming
S.R. In particular, although Dr. Malinek admitted that
treatment would “manage the risk” that Justin R. would
“re-offend[ ],” the doctor reiterated his opinion he “do[es] not
11 Similarly, Dr. Malinek later testified, “I believe that the
take-home point from these studies is that the idea that if you
have a child pornography offense, you also are going to commit a
hands-on offense has not been verified. It’s not been found to be
true.”
18
believe that [Justin R.] would commit a hands-on offense
especially now and with everything that has happened.” The
doctor, however, agreed that “the chances of [Justin R.]
reoffending would be lower if he goes through a full course of
treatment.”
Toward the end of Dr. Malinek’s testimony, the
juvenile court asked him the following question: “This is what
I’m not understanding about the methodology for these studies
that you’re making reference to about recidivism for child
pornography. When we say the words, ‘recidivism,’ do we mean
just looking at . . . child pornography again, or do we mean
something more than that?”
Dr. Malinek then provided the following equivocal
response: “Studies have looked at various forms of recidivism.
Some looked at the likelihood that someone will get in trouble
with the law which was a larger likelihood in some cases.
Specific studies looked at whether the person is likely to commit
a new child pornography offense. And others looked at whether
they are likely to commit a new hands-on sexual offense given
their history of prior conviction. [¶] It all depends, your honor,
in what the person, where he falls, what he comes into this with,
whether he has additional risk factors that are associated with
recidivism.”
Dr. Malinek also testified that the studies he relied upon
“have not looked at or did not provide information about how
many [subjects] completed rehabilitation.” He stated that “it’s
hard to quantify” rehabilitation in these studies because the
definition of that term “varies” in different jurisdictions. The
doctor testified that, “In some counties or states it’s 52 sessions[,
19
i]n other cases, it’s individual therapy[, and] in some cases, it
could be a hospital stay.”
C. The Juvenile Court’s Rulings
Before the juvenile court rendered its decision, Justin R.’s
counsel made the following concession: “I think that there is
sufficient risk for the court to take jurisdiction.” The attorney
maintained, however, he did not “believe that there is clear and
convincing evidence to support a removal.” S.R. and DCFS
countered, inter alia, that Justin R.’s conviction for possession of
child pornography gave rise to a presumption under
section 355.1, subdivision (d) that S.R. “is at substantial risk of
abuse.”12
Thereafter, the juvenile court sustained counts b-1 and d-1
of the first amended petition against Justin R.; declared S.R. “a
person described by [section] 300, subdivision[s][ ] (b)[ ] [and] (d)”;
found that “pursuant to [section] 361[, subdivision] (c),
continuance in the home of [Justin R.] is contrary to the child’s
12 The reporter’s transcript indicates that S.R.’s counsel
discussed a presumption that purportedly arose under
section 355.1, subdivision (b). This appears to be a typographical
error because section 355.1, subdivision (b) does not contain an
evidentiary presumption. (Compare § 355.1, subd. (b) [“Proof
that either parent, the guardian, or other person who has the
care or custody of a minor who is the subject of a petition filed
under Section 300 has physically abused, neglected, or cruelly
treated another minor shall be admissible in evidence”], with
§ 355.1, subd. (d) [providing that under certain circumstances,
there is a “presumption” that “the subject minor is a person
described by subdivision (a), (b), (c), or (d) of Section 300 and is at
substantial risk of abuse or neglect”].)
20
welfare” and “[t]here’s no reasonable means to keep the child safe
without removal”; and “removed [S.R.] from [Justin R.] and
released [S.R.] to mother.”
The juvenile court reasoned that Justin R.’s conviction, the
order requiring him to complete a 52-week sex abuse program,
and the other conditions imposed pursuant to his sentence (e.g.,
Justin R. may not have contact with children except for his own)
amount to “clear and convincing evidence that [Justin R. is] a
risk to all children.” The court also remarked that it was “not
sure whether or not [Dr.] Malinek’s statistical analysis is the
right direction or Dr. Crespo’s,” the “CPORT program is of
very little weight given that it has such a small sample size,”
Dr. Malinek does not know “what [Justin R.] will do in the
future” because he “has no crystal ball,” and the court was “not
accepting the assertions from Dr. Malinek that [Justin R.] did
this not because [he] enjoy[s] or get[s] a thrill out of looking at
child pornography, but . . . [was] just reacting to other stressors
in [his] life.” With regard to that last point, the juvenile court
stated that it did not “see [child porn] as being therapeutic,” and
Justin R. does not need to “watch child porn in order to relax.”
Additionally, the juvenile court explicitly found that
“[Justin R.] is an extreme risk to the child, because even though
the likelihood that he will do something to her physically . . . may
be small, the risk of harm is great.” The court further elaborated,
“Putting [S.R.] at risk of possibly being involved in child
pornography or some other hands-on sexual abuse is a great,
great danger to the child and would do her extreme harm.” The
juvenile court also stated: “[K]eeping [Justin R.] away from [his]
child will eliminate the risk of any future harm to the child at
least until [he has] been ret[r]ained, and we have reason to
21
believe that because of retraining there’s a very small likelihood
that [he] will do this again.”
The juvenile court authorized Justin R. to have visits
monitored by a DCFS-approved monitor in a setting approved by
the agency. The court barred Justin R. from having visits at
mother’s home and prohibited mother from serving as the
monitor for Justin R.’s visits. It also ordered Justin R. to undergo
sex abuse counseling for perpetrators.
On August 21, 2019, Justin R. appealed the juvenile court’s
dispositional order.
DISCUSSION
Section 361, subdivision (c) is a “limit on the court’s
authority to restrict a parent’s rights following the exercise
of dependency jurisdiction.” (See In re Anthony Q. (2016)
5 Cal. App. 5th 336, 347.) The provision states in pertinent part:
“A dependent child shall not be taken from the physical custody
of his or her parents . . . with whom the child resides at the
time the petition was initiated, unless the juvenile court
finds clear and convincing evidence of any of the following
circumstances[:] . . . [¶] (1) There is or would be a substantial
danger to the physical health, safety, protection, or physical or
emotional well-being of the minor if the minor was returned
home, and there are no reasonable means by which the minor’s
physical health can be protected without removing the minor
from the minor’s parent’s . . . physical custody. . . . [¶] (4) The
minor . . . has been sexually abused, or is deemed to be at
substantial risk of being sexually abused, by a parent . . . and
there are no reasonable means by which the minor can be
protected from further sexual abuse or a substantial risk of
22
sexual abuse without removing the minor from his or her
parent . . . .” (See § 361, subds. (c)(1) & (c)(4).)
“ ‘In reviewing a challenge to the sufficiency of the evidence
supporting the jurisdictional findings and disposition, we
determine if substantial evidence, contradicted or uncontradicted,
supports them. “In making this determination, we draw all
reasonable inferences from the evidence to support the findings
and orders of the dependency court; we review the record in the
light most favorable to the court’s determinations; and we
note that issues of fact and credibility are the province of the
trial court.” [Citation.] “ ‘ “We do not reweigh the evidence or
exercise independent judgment, but merely determine if there are
sufficient facts to support the findings of the trial court.” ’ ”
(I.J., supra, 56 Cal.4th at p. 773; see also In re Quentin (2014)
230 Cal. App. 4th 608, 615, fn. 6 (Quentin) [“Ordinarily, we review
the juvenile court’s jurisdiction findings and disposition orders for
substantial evidence”].)
Justin R. argues that “[t]he juvenile court erred when it
removed [S.R.] from [his] custody as she was never harmed or
neglected and there was not clear and convincing evidence of a
danger to the child necessitating her removal.”13 We reject the
first argument out of hand because “ ‘[t]he court need not wait
until a child is seriously abused or injured to assume jurisdiction
and take steps necessary to protect the child.’ ” (I.J., supra,
56 Cal.4th at p. 773; § 361, subds. (c)(1) & (c)(4) [permitting a
13 Justin R. does not argue that even if there is substantial
evidence he poses a substantial risk to S.R., DCFS nonetheless
failed to establish there is no reasonable means by which she
may be protected without removing her from his physical
custody.
23
court to remove a dependent child from a parent’s custody if there
is “a substantial danger to the physical or emotional well-being of
the minor” or “[t]he minor . . . is deemed to be at substantial risk
of being sexually abused[ ] by a parent,” italics added].)
As further discussed below, Justin R.’s second argument
fails because, construing all reasonable inferences in favor of the
juvenile court’s ruling, the record contains substantial evidence of
a substantial risk of great harm, even if the probability of that
risk was low, that Justin R. would sexually abuse S.R. if she were
in his custody.14 (See I.J., supra, 56 Cal.4th at p. 778.) Such
evidence consists of the nature and circumstances of Justin R.’s
offense, his lack of insight regarding his behavior, and aspects of
Dr. Malinek’s report and testimony that are consistent with the
14 Justin R. argues section 361, subdivision (c) required
DCFS to show that he poses an “imminent” or “immediate”
danger to S.R. None of the decisions he cites holds that this
provision includes such a requirement. (See Santosky v. Kramer
(1982) 455 U.S. 745, 747, 768–770 [invalidating a New York
statute that authorized the state to terminate the rights of a
parent if only a “ ‘fair preponderance of the evidence,’ ” and not
clear and convincing evidence, establishes that the child has been
“ ‘permanently neglected’ ”]; In re Basilio T. (1992) 4 Cal. App. 4th
155, 171 [holding that, “under section 361[,] a minor can be
removed from a parent’s custody only in extreme cases of
parental abuse or neglect”]; In re Rocco M. (1991) 1 Cal. App. 4th
814, 821, 823 [noting, in passing, that the consultant’s report for
the Assembly Committee on Human Services stated that certain
statutory revisions would ensure that “ ‘[t]he decision to remove a
child . . . and/or terminate parental rights would be based on the
immediate danger or “substantial risk” of danger to the child,’ ”
italics added].)
24
conclusion that there was a risk that Justin R. would perpetrate
a hands-on offense against S.R. were she in his custody.
I. The Nature and Circumstances of Justin R.’s Offense
Several days before the hearing, Justin R. suffered a felony
conviction for a violation of Penal Code section 311.11,
subdivision (c)(1). Penal Code section 311.11, subdivision (c)(1)
provides in pertinent part: “Each person who commits a violation
of subdivision (a) shall be punished [with imprisonment and/or a
particular fine] if one of the following factors exists: [¶] . . . The
matter contains more than 600 images that violate
subdivision (a), and the matter contains 10 or more images
involving a prepubescent minor or a minor who has not attained
12 years of age.” (See Pen. Code, § 311.11, subd. (c)(1).) In turn,
subdivision (a) of that statute prohibits any person from
“knowingly possess[ing] or control[ling] any matter,
representation of information, data, or image, including, but not
limited to, any . . . computer-generated image that contains or
incorporates in any manner, any film or filmstrip, the production
of which involves the use of a person under 18 years of age,
knowing that the matter depicts a person under 18 years of age
personally engaging in or simulating sexual conduct, as defined
in subdivision (d) of Section 311.4 . . . .”15 (See Pen. Code,
§ 311.11, subd. (a).)
15 Penal Code section 311.4, subdivision (d)(1) defines
“ ‘sexual conduct’ ” as “any of the following, whether actual or
simulated: sexual intercourse, oral copulation, anal intercourse,
anal oral copulation, masturbation, bestiality, sexual sadism,
sexual masochism, penetration of the vagina or rectum by any
object in a lewd or lascivious manner, exhibition of the genitals or
pubic or rectal area for the purpose of sexual stimulation of the
25
The contents and titles of certain videos and images found
on Justin R.’s devices indicate that he desired to have sexual
relations with girls his daughter’s age. For instance, the follow-
up investigation report indicates that Justin R.’s external hard
drive contained images of “young female children under the age
of 12 years old engaging in various sex acts with adults[ ] as well
as posing in the nude.” More importantly, the title of one of the
files downloaded onto the external hard drive was “pedo-11 yo
fucks daddy,” which suggests that Justin R. did fantasize about
having sex with his own daughter. The arrest report also
indicates that Justin R. uploaded onto Tumblr a video depicting a
nude prepubescent girl being molested by an adult male.
Furthermore, Dr. Crespo opined that Justin R.’s possession
of child pornography evidences an “active” or “generalized sexual
interest in children.”16 Similarly, although Dr. Malinek
viewer, any lewd or lascivious sexual act as defined in
Section 288, or excretory functions performed in a lewd or
lascivious manner, whether or not any of the above conduct is
performed alone or between members of the same or opposite
sex or between humans and animals.” (Pen. Code, § 311.4,
subd. (d)(1).)
16 Justin R. argues Dr. Crespo was not credible because he
did not interview Justin R., the doctor “cited only . . . an
irrelevant and debunked academic article” in his opinion letter,
and he “wasn’t much of an expert.” The juvenile court apparently
did not rely upon Dr. Crespo’s “statistical analysis” because the
court was “not sure” whether it was accurate. Nonetheless, the
juvenile court was entitled to rely on other aspects of Dr. Crespo’s
letter opinion and testimony. (See I.J., supra, 56 Cal.4th
at p. 773 [“ ‘ “[W]e note that[, when reviewing the record for
substantial evidence,] issues of fact and credibility are the
province of the trial court” ’ ”].)
26
“doubt[ed]” that Justin R. was “pedophiliclly [sic] inclined,” the
doctor noted that one of Justin R.’s therapists stated: “[Justin R.]
acknowledged an extreme addiction to pornography, which
eventually involved being sexually aroused by images of minor
children.” (Italics added.) Additionally, Dr. Malinek classified
Justin R. as a fantasy-driven offender, thereby acknowledging
that Justin R. derived “sexual gratification” from “child
pornography.” (Italics added.)
The juvenile dependency statutory scheme authorized the
lower court not only to conclude that Justin R. has a sexual
interest in young girls like S.R., but also to draw the reasonable
inference that he poses a substantial risk of harm to his own
daughter.
Section 355.1, subdivision (d) provides that a parent’s
conviction for “sexual abuse as defined in Section 11165.1 of the
Penal Code . . . shall be prima facie evidence . . . that the subject
minor . . . is at substantial risk of abuse or neglect.” (See § 355.1,
subd. (d).) Penal Code section 11165.1 provides in relevant part
that a person commits “ ‘sexual abuse’ ” if he or she “knowingly
develops, duplicates, prints, downloads, streams, accesses
through any electronic or digital media, or exchanges, a film,
photograph, videotape, video recording, negative, or slide in
which a child is engaged in an act of obscene sexual
conduct . . . .”17 (See Pen. Code, § 11165.1, subd. (c)(3).)
17 “[Penal Code] section 11165.1’s reference to ‘obscene’
acts or conduct is surplusage[,] . . . which we may safely
disregard. . . . [D]epictions of . . . children engaged in ‘sexual
conduct’ as defined in Penal Code section 311.4,
subdivision (d)(1)—regardless of whether or not [they are]
obscene [fall within the scope of Penal Code section 11165.1,
27
Justin R. suffered a conviction for sexual abuse for the purposes
of Penal Code section 11165.1 and section 355.1, subdivision (d)
because the police reports establish that he downloaded and
accessed images depicting children engaged in sexual conduct.
Admittedly, section 355.1, subdivision (d)’s evidentiary
presumption does not apply to this case. That provision creates
“a presumption affecting the burden of producing evidence.” (See
§ 355.1, subd. (d).) Justin R. rebutted that presumption by
offering evidence tending to show that he did not pose a
substantial risk of harm to his daughter (e.g., Dr. Malinek’s
opinion that Justin R. was not “a risk to his daughter”). (See
Quentin, supra, 230 Cal.App.4th at p. 615, fn. 6 [“[Section 355.1,
subdivision (d)’s presumption] disappears once contrary evidence
is introduced whether or not the contrary evidence is sufficient
under the appropriate standard of proof to disprove the presumed
fact”].)
Even without the benefit of the presumption, however, the
juvenile court was entitled to consider “the fact of [Justin R.’s]
prior sex abuse conviction and any reasonable inferences to be
derived from it.” (See Quentin, supra, 230 Cal.App.4th at p. 620;
see also id. at pp. 614–615 [“Once rebutted, the presumed fact
may still be considered by the fact finder, as well as any
reasonable inferences to be derived therefrom [citation], but
without regard to the benefit of the presumption [affecting the
burden of producing evidence]”].) Section 355.1, subdivision (d)
reflects a legislative judgment that the juvenile court may
reasonably infer from Justin R.’s conviction that there is a risk
subdivision (c)].” (See In re Ulysses D. (2004) 121 Cal. App. 4th
1092, 1098.)
28
that he may sexually abuse S.R. (See In re P.A. (2006)
144 Cal. App. 4th 1339, 1347 (P.A.) [holding that even if
section 355.1, subdivision (d)’s presumption is “not triggered” in a
particular case, “it nonetheless evinces a legislative
determination” that a child may be exposed to a substantial risk
of harm if the circumstances enumerated under that provision
are deemed to exist]; see also Los Angeles County Dept. of
Children & Family Services v. Superior Court (2013)
222 Cal. App. 4th 149, 160 (Los Angeles County Dept.) [“An
uncodified section of the bill adding this presumption explains
the Legislature’s intent: ‘The Legislature finds that children of
the State of California are placed at risk when permitted contact
with a parent or caretaker who has committed a sex crime’ ”].)
In sum, the nature and circumstances of Justin R.’s offense
indicate that on the date of the disposition hearing, his daughter
was in substantial danger of being subjected to a hands-on
offense.
II. Justin R.’s Lack of Insight Regarding His Behavior
Justin R. initially told police that he did not even have a
Tumblr account and that, outside of his prior employment as a
police officer, he did not view child pornography. He later
admitted to Dr. Malinek that he had a Tumblr account, but
refused to take full responsibility for his possession of child
pornography (i.e., by claiming that “child pornography ‘slipped in
there with the shock stuff by accident’ ”). His subsequent
conviction for possession of more than 600 images of children
engaged in sexual conduct establishes beyond a reasonable doubt
that the representations he made to the police and Dr. Malinek
were false. (See Pen. Code, § 311.11, subds. (a) & (c).) Although
29
Justin R. essentially pleaded guilty to this charge,18 Justin R.’s
own expert admitted Justin R. still “has a way to go in
developing some insight about his coping mechanisms [and] in
understanding the reason he has turned to and became addicted
to pornography in the first place.” (Italics added.)
Furthermore, the criminal court ordered Justin R. to
complete “52[-]week sex offender counseling” and “participate in
weekly individual counseling for 1 year.” Dr. Malinek admitted
that Justin R. needed to complete these programs to “manage the
risk” that Justin R. would “re-offend[ ],” and that Justin R. had
not done so by the time of the disposition hearing.
For these reasons, the juvenile court could have reasonably
found that at the time of the disposition hearing, Justin R. had
not yet acquired the insight needed to avoid engaging in behavior
that put S.R. at risk of being sexually abused. (Cf. Los Angeles
County Dept., supra, 222 Cal.App.4th at p. 161–162, 164 [holding
that “father[’s] . . . minimiz[ing] the seriousness of his prior sex
crimes and [his] fail[ure] to obtain any form of treatment for sex
abuse” weighed in favor of finding he posed a substantial risk of
sexually abusing his son].)
III. Dr. Malinek’s Report and Testimony
“ ‘Some risks may be substantial even if they carry a low
degree of probability because the magnitude of the harm is
potentially great. . . . [I]n order to determine whether a risk is
substantial, the court must consider both the likelihood that
18 “The legal effect of . . . a plea [of nolo contendere], to a
crime punishable as a felony, shall be the same as that of a plea
of guilty for all purposes.” (See Pen. Code, § 1016, subd. 3.)
30
harm will occur and the magnitude of the potential harm . . . .’ ”
(I.J., supra, 56 Cal.4th at p. 778.)
Dr. Malinek stated in his report that he “doubt[s] that
[Justin R.’s] values comport with abusing children,” and that
Justin R. “is certainly a ‘fantasy driven’ and not a ‘contact driven’
offender.” At the hearing, Dr. Malinek insisted that “the vast
majority of individuals who are possessing child pornography and
do not have other criminal histories[ ] are not likely to target a
child for a hands-on offense, not cross to molesting children.” The
expert further testified that, in his opinion, Justin R. was not “a
risk to his daughter.”
Yet, other aspects of Dr. Malinek’s report and his testimony
are consistent with the conclusion that Justin R. poses at least
some risk of sexually abusing S.R. Dr. Malinek stated in his
report that Justin R.’s “expected recidivism rate” under the
CPORT model is “five percent in five years.” (Boldface omitted.)
The doctor testified that Justin R.’s score “put him in a group of
people where the vast majority, 95 or 96 [percent], do not re-
offend.” (Italics added.) Further, when the doctor was asked for
further clarification on the meaning of the term “recidivism” in
the studies he relied upon, Dr. Malinek indicated that several of
them used that term to refer to the commission of “a new hands-
on sexual offense.” Dr. Malinek also admitted that the studies he
utilized did not differentiate between subjects who had
“completed rehabilitation” and those who had not, allowing for
the possibility that Justin R.’s risk of committing a hands-on
offense against S.R. is higher than five percent in five years. The
juvenile court was permitted to credit these aspects of
Dr. Malinek’s report and testimony and not others. (See P.A.,
supra, 144 Cal.App.4th at p. 1344 [“ ‘[A]ll conflicts are to be
31
resolved in favor of the prevailing party, and issues of fact and
credibility are questions for the trier of fact’ ”].)
On this record, we find substantial evidence that at the
time of the disposition hearing, there was a cognizable and
unmitigated, but arguably low, probability that Justin R. would
perpetrate a hands-on offense against S.R. if he had unmonitored
contact with her. In addition, the juvenile court correctly found
that “being involved in child pornography or some other hands-on
sexual abuse is a great, great danger to the child and would do
her extreme harm.” (See also I.J., supra, 56 Cal.4th at p. 778
[“ ‘[S]exual or other serious physical abuse of a child by an adult
constitutes a fundamental betrayal of the appropriate
relationship between the generations. . . . Such misparenting is
among the specific compelling circumstances which may justify
state intervention, including an interruption of parental
custody”].) It follows that the juvenile court did not err in
removing S.R. from Justin R.’s physical custody on the ground
that, “even though the likelihood that [Justin R.] will do
something to her physically . . . may be small, the risk of harm is
great.” (Cf. Los Angeles County Dept., supra, 222 Cal.App.4th at
p. 164 [holding that a low likelihood that a father would sodomize
his son constituted a substantial risk of harm].)
32
DISPOSITION
The juvenile court’s dispositional order is affirmed.
BENDIX, J.
We concur:
CHANEY, Acting P. J.
WHITE, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
33
Filed 4/23/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re S.R., a Person Coming B300214
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 19CCJP02321)
LOS ANGELES COUNTY ORDER MODIFYING
DEPARTMENT OF OPINION; CERTIFICATION
CHILDREN AND FAMILY AND ORDER FOR
SERVICES, PUBLICATION
Plaintiff and Respondent, [NO CHANGE IN JUDGMENT]
v.
JUSTIN R.,
Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed March 30, 2020 is
modified as follows:
1. By striking the phrase “—no matter how low the
probability—” from the second to last sentence of the first full
paragraph on page 3.
The opinion in the above-entitled matter filed
March 30, 2020, was not certified for publication in the
Official Reports. For good cause it now appears that the opinion
as modified above should be published in the Official Reports and
it is so ordered.
There is no change in the judgment.
CERTIFIED FOR PUBLICATION.
____________________________________________________________
CHANEY, Acting P. J. BENDIX, J. WHITE, J.*
* Judge of the Los Angeles Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
2