(Alameda County Super. Ct. No. SJ08011161)
The opinion of the court was delivered by: Siggins, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Sixteen-year-old D.S. was made a ward of the court and placed on probation in a residential sex offender treatment program after he admitted to robbery, battery, and a lewd and lascivious act on a 13-year-old girl. After he was terminated from the sex offender program and could not be placed in another, the juvenile court revoked his probation and committed him to the Department of Juvenile Justice (DJJ, formerly the California Youth Authority) under Welfare and Institutions Code section 777.*fn1
D.S. appeals, contending (1) he received a probation violation notice that was inadequate to satisfy due process; (2) there was insufficient evidence that he violated the terms of his probation; (3) the court failed to provide a written statement of its reasons for revoking probation; (4) there was no evidence he would benefit from a DJJ commitment or that less restrictive placements were inappropriate; (5) the court failed to exercise its discretion in setting the maximum term of D.S.'s confinement; and (6) his trial counsel provided ineffective assistance by failing to argue for a lower maximum term of confinement than recommended by the district attorney. We remand to require the juvenile court to exercise its discretion to set the maximum term of confinement and otherwise affirm the court's orders.
FACTUAL AND PROCEDURAL BACKGROUND
An Alameda County wardship petition filed in November 2008, alleged nine counts against D.S., including robbery, attempted robbery, rape, and lewd and lascivious acts on a child under the age of 14. At the time, D.S. was also the subject of a wardship petition in Contra Costa County. The Contra Costa County petition, alleging two counts of battery, was transferred to Alameda County and the two cases were consolidated.
Pursuant to a negotiated disposition, D.S. admitted one count of robbery and one count of nonforcible lewd and lascivious acts. The remaining Alameda County charges were dismissed. On the Contra Costa allegations, D.S. admitted one count of battery and the other count was dismissed.
D.S. was made a ward of the court, placed on probation, ordered "to cooperate . . . in any program of guidance, counseling or therapy," and released to his mother's home with electronic monitoring. After he repeatedly left the house without permission and violated electronic monitoring, D.S.'s mother returned him to juvenile hall, and said he was beyond her control. A few days later she changed her mind, and probation officers decided to give D.S. "one last opportunity" to remain at home.
Another section 602 petition was filed approximately two weeks after D.S. returned home that alleged he committed another robbery. D.S. admitted the charge and was placed in Gateway Residential Palm House, a facility with an intensive sex offender treatment program. Less than two months later, D.S. was terminated from the Gateway program for multiple acts of misconduct.
According to the department's request for an order of detention, D.S. was brought in for change of placement by Gateway staff on September 25, 2009. The report gave the following reason for his removal: "A peer of the minor in the group home disclosed to his therapist that [D.S.] had confided in him that he had a plan to rape the female overnight group home staff. The plan included turning the power off first. Staff recalled recent incidents where [D.S.] had been in the garage of the house and the power had mysteriously gone off. Taking into account the minor's sexual offense, and the safety o[f] the staff and fellow residents, a decision was made to terminate him from the program." According to the Gateway termination report, D.S. "did not put much effort forth on working on his sex offender treatment," and became "oppositional, belligerent and disrespectful" when staff reminded him to take care of responsibilities such as homework or chores. His behavior was also threatening at times to staff and peers, and "on occasion escalated to property destruction." "The final incident involved an alleged plot by [D.S.] to sexually assault the nighttime staff. It was Gateway's belief that this, along with the other safety concerns, warranted termination, for the safety of staff and residents."
While at Gateway, it was also reported that D.S. wrote a suicide note and tried to break into a locked drawer containing a knife, claiming he wanted to hurt himself. In both instances, "he was deescalated and safety precautions were put in place . . . ." D.S. was returned to juvenile hall, where his poor behavior continued. He often refused to return to his room, flooded his cell, would bang his head on the door or wall, was involved in several fights, was aggressive with the staff, and reportedly tied a sheet around his neck.
When he was terminated from Gateway, D.S. had already been rejected for placement at two other high level sex offender treatment programs and the probation department was "running out of options." Following his termination, efforts to place him in another treatment facility continued over several months.
In the permanency selection hearing report prepared for a December 2009 hearing, the department stated: "Efforts to place him have been unsuccessful, and at this time, the Probation Department will be filing the necessary paperwork to seek an escalation of his current order to a commitment to the [DJJ]." These factors led the department to initially seek modification of D.S.'s placement under section 778. His lawyer objected and argued that the department was required to proceed under section 777.
The department did just that and filed a section 777 petition with a hearing scheduled for the date set by the court for D.S.'s next placement review. The petition stated that D.S.'s prior placement was ineffective because he was terminated from Gateway. An attached offense report signed by the probation officer stated D.S. "was terminated from the court ordered placement, Gateway Residential . . . after several incidents of defiant and threatening behavior. It was also disclosed by his room mate that the minor had a plan to rape the female staff. [¶] As the minor has failed placement and has 3 very serious offenses, he is no longer amenable for placement." A modification report filed by the probation department approximately two weeks earlier, in connection with the section 778 application, provided more detailed information regarding D.S.'s placement failures and continuing misconduct, identified the numerous group homes that had rejected D.S. for placement, and recommended his commitment to the DJJ.
At the section 777 hearing, D.S.'s probation officer testified she visited Gateway while D.S. was there to meet each month with the minors she supervised, their therapists, and the executive director of the program. D.S. was not engaged in treatment, and had "several incidents of aggressive behavior, defiant behavior, . . . failing to follow the rules, being out of control of the staff."*fn2 The ...