Filed 8/2/21 In re R.A. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re R.A., a Person Coming Under the Juvenile
Court Law.
THE PEOPLE, F082120
Plaintiff and Respondent, (Super. Ct. No. 20JL-00085A)
v.
OPINION
R.A.,
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Merced County. Mark V.
Bacciarini, Judge.
Candice L. Christensen, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General,
Catherine Chatman and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
* Before Hill, P.J., Levy, J. and Poochigian, J.
Minor, R.A., appeals from a disposition order adjudging him a ward of the
juvenile court and committing him to the Department of Corrections and Rehabilitation,
Division of Juvenile Justice (DJJ). On appeal, he argues that the juvenile court abused its
discretion in committing him to the DJJ because (1) he did not qualify for the DJJ sex
offender treatment program based on his level of risk for reoffending, (2) he was unlikely
to benefit from DJJ placement, and (3) a less restrictive alternative placement was
available. The People respond that the minor’s claims are forfeited and, in any event, are
without merit. Anticipating the People’s response, minor argues that if his claims are
forfeited then his counsel was ineffective for failing to raise them below. We affirm.
PROCEDURAL SUMMARY
On July 21, 2020, the Merced County District Attorney filed a juvenile wardship
petition (Welf. & Inst. Code, § 602, subd. (a)) alleging minor, at the age of 16, committed
a forcible lewd act upon a child under the age of 14 (Penal Code, § 288, subd. (b)(1);1
count 1) and, at the age of 15, committed a forcible lewd act upon a child under the age
of 14 (§ 288, subd. (b)(1); count 2).
On October 13, 2020, minor pled no contest to count 2 in exchange for dismissal
of count 1.
On October 27, 2020, the probation officer issued an amended report,
recommending commitment to the DJJ for placement in the “Cognitive Behavioral
Treatment for Sex Offenders Program (CBT-SO).”
On November 3, 2020, the juvenile court held a disposition hearing. At the
hearing, minor’s counsel objected to the recommended DJJ placement and instead
requested placement at a local long-term program or a group home. The prosecutor
supported the probation officer’s recommendation. Neither party discussed minor’s
“Static-99R” recidivism worksheet score, which placed him in the average risk category
1 All further statutory references are to the Penal Code unless otherwise stated.
2.
for sexual reoffending.2 After considering the parties’ arguments, the juvenile court
committed minor to the DJJ for a maximum period of confinement of 10 years.
On November 25, 2020, minor filed a notice of appeal.
FACTUAL SUMMARY
In the summer of 2018, minor raped his seven-year-old stepsister.
DISCUSSION
A. Forfeiture
As a threshold matter, the People contend minor forfeited his claim that the
juvenile court abused its discretion in committing him to the DJJ because he was
ineligible for the CBT-SO program as a result of his Static-99R score. “ ‘A party forfeits
the right to claim error as grounds for reversal on appeal when he or she fails to raise the
objection in the trial court.’ ” (In re N.O. (2019) 31 Cal.App.5th 899, 935.) Because
minor’s counsel did not voice a specific objection based on the Static-99R score or
contend he was ineligible for placement in the CBT-SO program, the issue is forfeited.
(See People v. Scott (1994) 9 Cal.4th 331, 351–352; In re S.B. (2004) 32 Cal.4th 1287,
1293 [juvenile matters are not exempt from the forfeiture rule].)3
2 The probation officer’s amended report indicated that “[e]ligibility [for CBT-SO]
requires a Static[-]99R score of four or higher.”
3 Defendant does not contend that the DJJ placement was unauthorized; he contends
that he may not be eligible for the CBT-SO program through the DJJ, therefore the DJJ
placement would not offer the treatment options the court anticipated in making the
placement. The placement is not unauthorized and is not exempt from forfeiture. (Cf.
People v. Scott, supra, 9 Cal.4th at p. 354 [challenge to an “ ‘unauthorized’ ” sentence—
i.e., a sentence that could not lawfully be imposed under any circumstance in the
particular case—cannot be forfeited].)
The question of whether the juvenile court abused its discretion in placing minor is
not otherwise appropriately reviewed despite the forfeiture because it is not a pure
question of law that can be fully resolved without reference to the record. (See In re
Sheena K. (2007) 40 Cal.4th 875, 889.)
3.
B. Ineffective Assistance of Counsel
Anticipating our conclusion that his claim is forfeited, minor contends his counsel
was ineffective for failing to object to the DJJ placement in light of his apparent
ineligibility for the CBT-SO program based on his Static-99R score. We disagree.
To prevail on a claim of ineffective assistance of counsel, a minor must establish
both that his counsel’s performance was deficient and that he suffered prejudice.
(Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); In re Angel R. (2008)
163 Cal.App.4th 905, 909.) The deficient performance component of an ineffective
assistance of counsel claim requires a showing that “counsel’s representation fell below
an objective standard of reasonableness” “under prevailing professional norms.”
(Strickland, at p. 688.) With respect to prejudice, a minor must show “there is a
reasonable probability”—meaning “a probability sufficient to undermine confidence in
the outcome”—“that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” (Id. at p. 694.) We “need not determine whether counsel’s
performance was deficient before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies …. If it is easier to dispose of an ineffectiveness claim
on the ground of lack of sufficient prejudice, … that course should be followed.” (Id. at
p. 697.)
In order to demonstrate prejudice in this context, minor must show a reasonable
probability that alerting the juvenile court to his Static-99R score would have resulted in
a different placement. The People argue that minor was committed to the DJJ to benefit
from the vocational and life skills programs as well as the CBT-SO program for which he
now contends he was ineligible because of his Static-99R score. Even if minor was
ineligible for the CBT-SO program, the People argue, the juvenile court would have
committed him to the DJJ to benefit from the other available programs and services and
because there was no suitable less restrictive alternative placement, he suffered no
prejudice at counsel’s failure to object. We agree.
4.
The probation officer outlined the reasons for his DJJ placement recommendation.
She detailed the minor’s drug use, the minor’s possible gang affiliation, the seriousness
of the charges, the minor’s apparent lack of remorse, the minor’s strained relationship
with his family, the minor’s need for mental health counseling as a result of childhood
traumas, and the inability of the local long-term program to meet the minor’s treatment
needs. The officer concluded the “[DJJ] can meet the needs of the minor and provide a
level of rehabilitation that can assist him in gaining skilled employment upon his release.
The [DJJ] offers multiple intensive treatment programs to address violent and
criminogenic behavior, as well as, academic and vocational education, within a structured
environment.” The DJJ treatment programs the probation officer recommended for
minor included: the CBT-SO program; mental health treatment programs such as
“Trauma Focused Cognitive Behavior Treatment,” “psychopharmacological services[,]
and specific interventions”; “Career Technical Education”; “Cognitive Behavioral
Treatment,” a treatment program that teaches offenders to identify and change destructive
thought patterns; the “Long-Term Offender Program,” a cognitive behavioral treatment
program aimed at reducing the likelihood of reoffending; the “Transitions Program,
which teaches offenders money management, financial literacy, job readiness, and job
search skills; the “Counterpoint” program, a 33-session cognitive behavioral program
designed to develop more prosocial attitudes and decrease reoffending; “Aggression
Interruption Training,” a “10-week cognitive behavioral intervention that teaches young
people how to improve their social skills, consider other people’s perspectives[,] and
control their anger.”
According to minor, the only program he is ineligible for as a result of his
Static-99R score is the CBT-SO program. No other available program was better suited
to treating minor—after the probation officer reviewed minor’s case with the local sex
5.
offender program, it was recommended he attend the DJJ program;4 and the program that
minor’s counsel requested (for sex offenders who had been victims of sex offenses) was
unavailable to 18-year-olds who had graduated high school and defendant had already
turned 18 years old and graduated high school by the date of the disposition hearing.
At the disposition hearing, the juvenile court agreed with the probation officer’s
recommendation and committed the minor to the DJJ, finding minor would “benefit from
the reformatory discipline or other treatment provided by DJ[J]” and “no less restrictive
environment [was] suitable based on the nature of the offense, … the criminal
sophistication involving the offense, and that [minor] does need the intensive
treatment … available to him[] at DJ[J].” Minor’s apparent ineligibility for the CBT-SO
program does not undercut the juvenile court’s findings. That program was but one of
many treatment programs available to minor at the DJJ. Further, the court concluded in
light of the severity of the crime, a less restrictive placement was not a suitable option.
The unavailability of the CBT-SO program would not have changed that conclusion.5
There is no reasonable probability that the juvenile court would have reached a
different placement had it been informed that minor was ineligible for the CBT-SO
program. Minor has therefore suffered no prejudice and his ineffective assistance of
counsel claim fails.
4 Minor contends that he “had already been accepted at” the local long-term
program. While minor was assessed at the local long-term facility, the facility
determined “the program would not adequately meet the minor’s treatment needs.”
5 While we do not reach the merits of minor’s claim, we note that the juvenile court
made the required findings that the minor would benefit from a DJJ placement and no
less restrictive alternative placement was suitable to meet the minor’s treatment needs.
(In re N.C. (2019) 39 Cal.App.5th 81, 85–86.) If we reached the matter on the record
before us, we would conclude substantial evidence supported the juvenile court’s findings
and the juvenile court therefore did not abuse its discretion in placing minor at the DJJ,
even if the CBT-SO program was unavailable to him.
6.
DISPOSITION
The order is affirmed.
7.