Samuel B., In re

• Decision Date: 26 August 1986
• Docket Number: No. B016844,B016844
• Citation: 229 Cal.Rptr. 378,184 Cal.App.3d 1100
• Court: California Court of Appeals Court of Appeals
• Parties: In re SAMUEL B., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. SAMUEL B., Defendant and Appellant.

Page 378

229 Cal.Rptr. 378

184 Cal.App.3d 1100

In re SAMUEL B., a Person Coming Under the Juvenile Court Law.

The PEOPLE, Plaintiff and Respondent, v. SAMUEL B., Defendant and Appellant.

No. B016844.

Court of Appeal, Second District, Division 7, California.

Aug. 26, 1986.

Review Denied Dec. 18, 1986.

Paul T. Suzuki, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen. and Donald E. De Nicola, Deputy Atty. Gen., for plaintiff and respondent.

LILLIE, Presiding Justice.

The minor challenges only the disposition order committing him to the custody of the California Youth Authority after petition was sustained alleging forcible rape in concert (count I) ( § 261, § 264.1, Pen.Code); kidnapping (count II) ( § 207, Pen.Code); and robbery (count III) ( § 211, Pen.Code).

FACTS

About 2:00 a.m., Olga V. and a friend were walking from a restaurant when they were approached by a car from which exited appellant and two men, one of whom demanded of her friend everything he had; at the same time, appellant grabbed and tore four gold chains and a pendant from Olga V.'s neck. Appellant told the men they should take her to the car whereupon appellant and the men grabbed her and forced her into the front seat.

Appellant drove for some time threatening Olga V. who was screaming; to stop her, one of the men tied a handkerchief around her mouth; appellant drove to an alley between two houses and stopped; the men forced her into a garage; one of them started to hug Olga V. but appellant told the others that he would go first; appellant removed her clothing and raped her while one of the men held her by the arms from behind, and the other watched out the door; then appellant pinned her arms behind her back while one of the other men raped her; while appellant held her down and threatened to kill her if she resisted, the third man removed the handkerchief and forced her into an act of oral copulation during which she managed to scream, frightening the three. She was able to get up, and ran half naked and screaming to a house and knocked; the three men were still trying to grab her but when the resident came to the door, they ran; police arrived within 15 minutes and, after searching the area, found one of the men; appellant and the third man were found later.

Defense

Appellant testified he first saw Olga V. on his way to the liquor store; she was "freaking out" and others were holding onto her; when he returned, he found her seated in his car with his friend Tony (whose last name he did not know) kissing him; when he got into the driver's seat, Olga V. turned to him and kissed and caressed him; appellant drove to Tony's house and went into the garage; defendant told Tony to leave then he had sex with Olga V., who "got scared" and ran when Tony came into the garage. The jewelry found in his possession belonged to Olga V., and was torn off while they had sex; he told her he would give it to her when he took her home.

I

COMMITMENT TO CALIFORNIA YOUTH AUTHORITY

No Abuse of Discretion

Appellant contends the juvenile court abused its discretion by committing him to the Youth Authority; he argues it was punitive in that alternative dispositions were available, he had no prior record, except for a burglary on which he was counseled and released, and the probation officer failed to state reasons to support the recommended commitment. We disagree. The disposition order is supported by substantial evidence (In re James H., 165 Cal.App.3d 911, 922, 212 Cal.Rptr. 61); there is manifest no abuse of judicial discretion. (In re John H. 21 Cal.3d 18, 27, 145 Cal.Rptr. 357, 577 P.2d 177; In re Anthony M., 116 Cal.App.3d 491, 502, 172 Cal.Rptr. 153.)

The acts committed by appellant are grave offenses--forcible rape in concert with others, kidnapping and robbery--involving force, violence and threats to the victim. It is true, as pointed out by appellant, that a serious offense is not a ground, in and of itself, for Youth Authority commitment (In re Lawrence B., 61 Cal.App.3d 671, 674, 677, 132 Cal.Rptr. 599), but the gravity of the offense is always a consideration with other factors. (In re Abdul Y., 130 Cal.App.3d 847, 869, fn. 21, 870, 182 Cal.Rptr. 146.) While the crimes here are extremely serious, the record clearly indicates that the Youth Authority commitment was predicated on factors other than a desire to punish appellant because of the seriousness of the offenses.

While the statutory scheme guiding the court in its treatment of juvenile offenders contemplates Youth Authority commitment as a last resort ( § 734, Welf. & Inst.Code; In re Aline D., 14 Cal.3d 557, 564, 121 Cal.Rptr. 817, 536 P.2d 65), "[n]onetheless, there is no absolute rule that a Youth Authority commitment should never be ordered unless restrictive placements have been attempted. [Citations.]" (In re Ricky H., 30 Cal.3d 176, 183, 178 Cal.Rptr. 324, 636 F.2d 13.) Alternative dispositions were available but, under the circumstances, not to this appellant. Our Supreme Court responded to the contention appellant here makes--that under In re Aline D. 14 Cal.3d 557, 121 Cal.Rptr. 817, 536 P.2d 65, a commitment to the Youth Authority should never be ordered unless "less restrictive" placements have been attempted--in In re John H. 21 Cal.3d 18, 145 Cal.Rptr. 357, 577 P.2d 177: "To the contrary, the circumstances in a particular case may well suggest the desirability of a Youth Authority commitment despite the availability of such alternative dispositions as placement in a county camp or ranch. (See In re Willy L., supra, [56 Cal.App.3d] at p. 265 ; In re Lawrence B., supra, 61 Cal.App.3d 671, 677, (dis. opn.).) Aline D. stressed the importance of finding a probable benefit to the minor before a Youth Authority commitment can be upheld." (P. 27, 145 Cal.Rptr. 357, 577 P.2d 127.)

Here there was no substantial history of delinquent activity, but it is clear that other alternative placement options were explored and considered. Other factors clearly support the court's commitment. Appellant's counsel asked the court to send him to long term camp as the less restrictive alternative. The court found that the parents are incapable of providing proper maintenance, training and education for this minor and it is essential for his rehabilitation that he be removed from their custody; and committed him to the Youth Authority. The probation report, too, discloses that alternative dispositions were considered and rejected: "In view of the above, the probation officer feels that it is clearly evidenced that there is no alternative, and that a recommendation for the minor's commitment to the California Youth Authority is indicated." "[T]he above" refers to the probation officer's doubt as to the credibility of appellant's version of what occurred; the parents' downplay of his criminal conduct and their belief in their son's account of what happened; the minor's failure to attend school since he was 15 years old even though he has remained in his parents' home and under their control at all times; the fact "the minor and two adult companions abducted the victim ...; and drove her in a car to the City of Inglewood, California where they raped and robbed her in a garage"; and appellant's age, 18 years. The probation officer concluded, "A camp-community placement setting was considered by the probation officer, but it is contraindicated due to the minor's age." (In re Anthony M., 116 Cal.App.3d 491, 502-503, 172 Cal.Rptr. 153.) In the circumstances the court felt that the prospects for rehabilitation were better in CYA than in a camp. (In re Abdul Y., 130 Cal.App.3d 847, 870-871, 182 Cal.Rptr. 146).

Considering the lack of control by the parents and their inability to accept appellant's criminal conduct, the fact he has not been enrolled in school since he was 15 years old although living with his parents, the seriousness of the offenses, appellant's involvment with two adult males, the use by appellant of his car, what appears to be his instigation of the kidnapping and his "take charge" demeanor, even telling the others he would "go first," and appellant's unwillingness to face up to his responsibility for his crimes, the probation officer felt that a recommendation for Youth Authority commitment "is necessary for the protection of the community." ( § 202 subd. (b), Welf. & Inst.Code; In re Abdul Y., 130 Cal.App.3d 847, 869, 182 Cal.Rptr. 146.)

The only prior record shown in the probation report is a burglary for which he was arrested in 1984 when he was 16, no petition was filed and he was counseled and released. Even were this a case of a first-time offender, this in itself does not indicate that Youth Authority commitment is inappropriate. (In re Abdul Y., 130 Cal.App.3d 847, 869, 182 Cal.Rptr. 146; see also In re Jessie L., 131 Cal.App.3d 202, 218, 182 Cal.Rptr. 396.)

Calculation Of Maximum Term

Appellant was committed to the custody of the California Youth Authority for a period not to exceed eleven years, eight months. The term was calculated as follows: nine years for rape (count I); one year, eight months for kidnapping (count II); and one year for robbery (count III). Appellant asserts: "the intent and objective of the perpetrators of the crimes was to rape the victim. The kidnapping which occurred was in furtherance of the rape." Thus, argues appellant, the imposition of separate consecutive sentences for both offenses contravenes the double punishment proscription of section 654, Penal Code. We agree. (People v. Burns, 158 Cal.App.3d 1178, 1181, 205 Cal.Rptr. 356.) The appropriate procedure is to stay execution of the sentence imposed for kidnapping (count II), the lesser offense, such stay to become permanent when service of sentence for forcible rape in concert (count I), the greater offense, is completed. (People v. Masten, 137 Cal.App.3d 579, 590, 187 Cal.Rptr. 515).

The Attorney General...