People v. J.S. (In re J.S.)

• Decision Date: 05 February 2018
• Docket Number: A148869
• Court: California Court of Appeals Court of Appeals
• Parties: In re J.S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.S., Defendant and Appellant.

In re J.S., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent, v. J.S., Defendant and Appellant.

A148869

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

February 5, 2018

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Contra Costa County Super. Ct. No. J0900388)

J.S. has been a ward of the Contra Costa Juvenile Court for more than eight years, beginning when he was 12. There have been multiple placements and probation violations. Three times J.S. was sent to the Division of Juvenile Facilities (DJF) pursuant to Welfare and Institutions Code section 1752.16¹ to participate in the juvenile sex offender treatment (JSOT) program. In the summer of 2015, J.S. completed the program and was returned to the juvenile court, which again admitted him to probation upon specified conditions. One of those conditions was that J.S. "not have, view or possess verbal descriptions of or pictures showing 'sexual conduct' "—which was defined to include "intercourse, oral sex, anal sex, lewd and lascivious acts, or any excretoryfunctions performed in lewd and lascivious manner between people (regardless of gender) or between people and animals or any penetration of the vagina or rectum by any object and sadomasochistic abuse, masturbation, exhibition of the genitals, pubic or rectal area, or defecation or urination for the purpose of sexually arousing [the] viewer"—except as authorized by specified persons.

In May of 2016, the juvenile court found that J.S.—who was then more than 20 years of age—violated this condition, imposed lifetime sex offender registration, and ordered him committed to DJF. J.S. advances a number of arguments—the majority of which were not raised below—as establishing fatal infirmities in the violation, the commitment, and the registration requirement. We conclude there is no basis for overturning the commitment, and we thus affirm.

BACKGROUND

This is J.S.'s third appeal. He has been represented by the same appointed counsel for each of those three appeals. The briefs filed by both sides reflect a thorough knowledge of the record. It is consequently necessary to chronicle only those events needed to illumine and resolve the contentions on this appeal, and we begin by quoting from our opinion on the second appeal:

"J.S. came to the attention of police when, at 12 years of age, neighbors observed him in sexual activity with an eight-year-old boy. On March 12, 2009, a petition under [Welfare and Institutions Code] section 602 was filed, alleging that J.S. committed two counts of lewd and lascivious acts with a child, violations of Penal Code section 288, subdivision (a). J.S. admitted one count and was adjudged a ward of the court. He was placed at Gateway Residential Programs, from which he was expelled for failing to comply with the program's rules. The court sustained a probation violation and placed J.S. at Martin's Achievement Place, from which he was expelled for noncompliant and disruptive behavior. The court sustained a probation violation and J.S. was returned to Martin's Place, on condition that he take medication prescribed by a juvenile hall psychiatrist. The placement was terminated after J.S. placed his hands on the hips of an adult female staff member from behind and started pushing his erect penis against herthrough his clothing. After a contested probation revocation hearing, the court sustained a probation violation.

"Following a contested disposition hearing on March 28, 2011, the court continued J.S. as a ward of the court and committed him to the custody of DJF for a maximum term of eight years. J.S. appealed and, on May 22, 2012, this court reversed the commitment to DJF, as required by the holding of In re C.H (2011) 53 Cal.4th 94, 97-98 (C.H.). (In re J.S. (May 22, 2012, A131645) [2012 WL 1854300, nonpub. opn.].) However, on April 9, 2012, the juvenile court had already set aside the DJF commitment. At a contested hearing on that date, the court adopted the recommendations made in a probation department report, dated April 5, 2012, and ordered that J.S. be 'temporarily housed' at DJF, pursuant to section 1752.16, to be returned to Contra Costa County 'when he satisfactorily completes DJF's Sex Offender Behavioral Treatment' or in 2016 (J.S.'s 21st birthday, at which time the court's jurisdiction over him as a ward would end)." (In re J.S. (July 8, 2013, A135214) opn. ordered nonpub. Aug. 28, 2013, fn. omitted.)

As to the merits of J.S.'s second appeal, we concluded that in light of a recent amendment to section 1752.16, there was not a statutory lack of power for the juvenile court to order J.S. housed at DJF so that he could participate in its JSOT program. But the majority of our opinion was devoted to examining the constitutionality of a number of J.S.'s probation conditions, and we struck down a number of conditions as overly broad or so poorly worded as to be unenforceably vague.

One of the conditions we struck told J.S. "not [to] possess at any time any type of pornography, including written pornography, pictures, videotapes, or electronic computer applications or telecommunications access to such applications." Doing so, we adopted the analysis of United States v. Guagliardo (9th Cir. 2002) 278 F.3d 868, 939: " '[A] probationer cannot reasonably understand what is encompassed by a blanket prohibition on "pornography." The term itself is entirely subjective; unlike "obscenity," for example, it lacks any recognized legal definition.' " " 'Reasonable minds can differ greatly about what is encompassed by "pornography." Given this inherent vagueness, Guagliardocannot determine how broadly his condition will extend. Further, we cannot determine whether the condition is otherwise reasonable . . . .' " (Ibid.) The challenged condition was stricken, however, we allowed that "[o]n remand, the court may consider whether a condition with greater specificity would be reasonable." (Id. at p. 940.)

The juvenile court tried again. On October 28, 2013, at a hearing for which the record does not include a reporter's transcript, it again ordered J.S. housed at DJF, fixed the maximum term of his confinement (8 years), and reframed the pornography condition as follows:

"Minor may not have, view or possess verbal descriptions of or pictures showing 'sexual conduct' unless the following conditions are met:

"[1] specific images of such material are approved by the minor's academic teacher, treating therapist or psychiatrist in writing with the images or material attached, and

"[2] 7 days' advance written notice is given by the teacher, treating therapist or psychiatrist to minor's probation officer and

"[3] the probation officer does not object to the minor's teacher, treating therapist or psychiatrist.

"For purposes of this paragraph, 'sexual conduct' includes:

"—intercourse, oral sex, anal sex, lewd and lascivious acts, or any excretory functions performed in a lewd and lascivious manner between people (regardless of gender) or between people and animals, or

"—any penetration of the vagina or rectum by any object, and

"—sadomasochistic abuse,

"—masturbation

"—exhibition of the genitals, pubic or rectal area, or

"—defecation or urination for the purpose of sexually arousing the viewer."

J.S. elected not to appeal from this order. Instead, while housed at DJF, he earned his GED in 2014, and completed the JSOT program in 2015.

In August of 2015, the probation officer was recommending that J.S. be accepted for "re-entry" into Contra Costa County, even though his time at DJF was "plagued with great concerns including physical violence, verbal abuse (usually of a threatening or sexual nature), gang activity, and sexual based offenses." The probation officer elaborated: "As recent as a year ago, the youth had accumulated 24 level three behavior reports (the worst behavior infractions), for offenses that range from threatening staff, battery on staff, and sexual offenses such as exposing his genitals. He had additionally accumulated 84 level two behavioral reports." J.S. was described as having pronounced anger management, "entitlement and manipulation issues," and the probation officer admitted to "great concern" regarding J.S.'s "remain[ing] a 'High Risk' for Aggression/Violence, a 'High Risk' for Social/Cognitive Skills, a 'High Risk' in regard to social influences, and a 'High Risk' for escape."

Those concerns were noted at the "re-entry" hearing held on August 10, 2015, when the prosecuting attorney opposed releasing J.S. from custody. Both the prosecuting attorney and the juvenile court were dismayed at the prospect of J.S.'s release from DJF, which the court called "outrageous." The court addressed J.S. in these stern words: "[Y]ou're one of the most dangerous people I've had released from the Department of Juvenile Justice. [¶] You did a terrible job there. [¶] . . . [¶] I don't know what's going to change you. I think the community is at risk. I am powerless to do anything about that at this time."

The juvenile court entered in the minutes its finding that J.S. posed "a danger and risk to [the] community." Nevertheless, the court continued him as a ward. J.S. was again placed on probation, ordered "released from . . . custody and placed on 180 days of home supervision upon release." The conditions of J.S.'s probation were read aloud to him by the court, including the "sexual conduct" condition quoted above. The hearing ended with the court telling J.S., "in all my time here, I've never read probation conditions quite as extensive as this. That is because they [the probation department] think you're dangerous," an opinion the court shared. Upon J.S.'s...