People v. John F.

Opinion

THE COURT.

*

The 13-year-old appellant was committed to the Kern Youth Facility following a finding by the juvenile court that he was a minor described by Welfare and Institutions Code section 602. The finding was based upon a sustained allegation of rape in concert. (Pen. Code, § 264.1.)

The issues raised on appeal deal with findings by the trial court at the minor’s dispositional hearing which led to appellant’s removal from his home. It is our determination that the lower court abused its discretion by failing to consider the factors embodied in Welfare and Institutions Code section 725.5 in determining an appropriate dispositional order. We reverse the order and remand for a new dispositional hearing.

The record supports a finding that appellant aided and abetted four other minor males in the rape of a 15-year-old girl. The youths were all somewhat acquainted and on a particular afternoon the victim, Clara W., accompanied

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appellant and three other males to the basement of one of their homes. There the group was joined by Wesley B., the brother of one of the juveniles, who sexually assaulted the victim while the others held her down. Wesley’s brother prevented Clara from screaming. Following the physical attack by Wesley, the others declined Wesley’s offer to follow suit and the group dispersed.

One of the other minors, Kevin F., was allowed to enter an admission to a misdemeanor violation of Penal Code section 272 in exchange for his testimony on behalf of the petitioner. According to Kevin, the other three males, including appellant, had quietly discussed “having sex” on the way to the residence. Once in the basement, all five of the males briefly conferred outside of the victim’s presence regarding “who was going to go first.”

At appellant’s dispositional hearing his counsel asked the court to stay the recommended commitment to the local facility. The court then commented: “Well, the three out of the other four have already been committed to the Kern Youth Facility, and I don’t see any reason for treating any of them any differently, let’s put it that way. So I’m going to follow the recommendation.”