Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. J032054
GEMELLO, J.
Alan W. contends the juvenile court erred by denying his petition to set aside his California Youth Authority commitment because in two years of commitment he had not been provided statutorily required sex offender treatment. He also argues he should not be required to complete sex offender treatment because the prosecutor never proved he committed a qualifying offense. We affirm.
Background
In an amended juvenile wardship petition (Welf. & Inst. Code, § 602), the Solano County District Attorney charged Alan W. in October 2003 with forcible sexual penetration with a foreign object (Pen. Code, § 289, subd. (a)(1)) and attempted forcible rape (Pen. Code, §§ 664/261, subd. (a)(2)), both charged as serious felonies (Pen. Code, § 1192.7, subd. (c)) requiring sex offender registration (Pen. Code, § 290). After a contested jurisdictional hearing on December 16, 2003, the court sustained the forcible sexual penetration allegation but not the attempted forcible rape allegation.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Alan has filed a motion for judicial notice of the record of the prior appeal in this action, In re Alan W., A106429. We construe the motion as a request to designate the record in appeal number A106429 as part of the record in this appeal, pursuant to California Rules of Court, rule 8.147(b)(1), and so construed, we grant the request.
At the contested dispositional hearing on April 23 and 28, 2004, the court rejected Alan’s request for placement in Hand Up Homes for Youth, Inc., an out-of-state locked facility specializing in treatment for juvenile sex offenders. Instead, it committed Alan to the California Youth Authority (CYA) for a maximum period of confinement of eight years eight months.
The California Youth Authority was renamed, effective July 1, 2005, the Division of Juvenile Justice of the Department of Corrections and Rehabilitation. (Gov. Code, §§ 12838, subd. (a), 12838.13.) For purposes of clarity, we refer to it as CYA because the statutes in issue continue to use that designation. (§§ 734, 779.)
Appeal Number A106429
Alan appealed the disposition order. As relevant here, Alan argued that the court abused its discretion in committing him to the CYA because the record did not contain substantial evidence to support the court’s findings that he would probably benefit from a CYA commitment and that less restrictive alternatives would be ineffective or inappropriate.
This court affirmed the commitment order, finding no abuse of discretion. (In re Alan W. (2005) A106429, slip op. at p. 10.) “In the present case, the juvenile court explained that one problem with placing appellant in the Hand Up program was the length of the program (two years). A CYA commitment by contrast would have a ‘base term’ of three years, and could last in excess of eight years, if necessary. Concluding that a term of two years was too short ‘to help this minor . . . with the problems, myriad of problems that he has,’ the court sought to impose a disposition that would combine appellant’s possible rehabilitation with the protection of society.
“Appellant suggests there was no substantial evidence that two years at the Hand Up program would be too short a period for his mental problems to be cured. After all, appellant points out, his treating psychologist (Dr. Bradlee) testified he may have recently begun to ‘get it’ in his therapy, and the next ‘couple of years’ would be ‘critical’ to any recovery.
“But, as the prosecutor pointed out to the court, appellant had already been receiving, on a weekly basis, ‘one-on-one counseling for over four years, and we still have serious violent crimes being committed . . . .’ Although appellant had been attending therapy on a weekly rather than a daily basis, the fact that he had been receiving therapy for years and still continued to commit crimes tends to undermine the argument that a shorter period of therapy at Hands Up (as opposed to CYA) would correct his many serious mental problems.
“Also, it should not be overlooked that the juvenile court was well aware of appellant’s longstanding record of mentally aberrant behavior. This included the ‘admitted documented incident of him attempting to drown his younger brother in a pool,’ as well as ‘cruelty to animals, such as lowering a pet lizard into an air conditioner, trapping and bludgeoning a possum, killing frogs with fireworks, setting a pet rat on fire,’ past incidents of weapon possession, threats, and a continuing disturbing preoccupation with violence, cruelty, torture, and sexual sadism, as demonstrated by appellant’s drawings and songs.
“Despite four years of mental health counseling, treatments and other interventions, appellant continued to have serious mental health problems, and he continued to engage in criminal conduct. A commitment to the CYA of at least three years was an appropriate dispositional choice, in light of the need to rehabilitate appellant and protect the public. It cannot be said that the trial court’s commitment was an abuse of its discretion. (See [In re] Asean D. [(1993)]14 Cal.App.4th [467,] 473.)” (In re Alan W., A106429, slip op. at pp. 10-11, footnote omitted.)
In a modification, the court added the following footnote to the foregoing discussion: “Appellant also contends that the trial court may have misunderstood the provisions of the juvenile court law, and that the showing of a possible benefit to appellant from a CYA placement was inadequate. We reject these contentions, because as the discussion set forth in the text above makes clear, there was no relevant misunderstanding by the trial court, which acted in order to insure that appellant would be benefited by a sufficiently long period of mental health treatment at CYA.” (In re Alan W., A106429, modification order filed April 12, 2005.)
Petition to Vacate CYA Commitment
In November 2005, after the remittitur had been filed in appeal number A106429, Alan’s father filed a petition to set aside Alan’s CYA commitment. The petition alleged that Alan had been in the CYA since May 2004 and had not been placed in a sex offender treatment program. (§§ 778, 779.) It requested placement in the Hand Up program. The juvenile court appointed the public defender and set a hearing for January 2006. At that hearing, the court denied the father’s petition with the understanding the public defender would file a new petition. Minor was transferred from the CYA to the Solano County Jail for the proceedings in about March 2006. In July 2006, new counsel was appointed.
On August 8, 2006, appointed counsel finally filed a new petition. The new petition alleged that “[p]ursuant to W & I § 727.6 and the express order of this Court, CYA was obligated to provide ‘sexual offender treatment’. More than two years has elapsed since that order, and CYA failed to provide such treatment.” Because CYA “has failed to and is unable to provide services to the minor which satisfy minimal constitutional and statutory standards,” the petition asked the court to modify the CYA commitment and order a new “rehabilitative, treatment oriented placement” or placement with Alan’s parents accompanied by intensive supervision and treatment.
The court held a contested hearing on the petition October 13, 2006. The court admitted documentary evidence about the CYA’s alleged inability to provide adequate services to its wards. Alan presented testimony by Gary Rocke, his counselor at Oak Lodge, the CYA facility where Alan was housed from November 2004 to February 2006. Rocke testified as follows. The facility did not offer specialized sex offender treatment. In the fall of 2005, Rocke and Alan first learned that Alan was required to complete specialized sex offender treatment before he could be paroled. Early in 2006, Alan was transferred to a general population lodge that also did not offer specialized sex offender treatment.
On cross-examination, Rocke acknowledged that when Alan first entered the CYA, he was placed in the Redwood Lodge Intensive Treatment Program to address his depression and suicidal tendencies. After leaving Redwood Lodge, he was placed at Oak Lodge Specialized Counseling Program to continue to address his mental health issues. Paul Woodward, CYA Program Administrator Supervisory, explained that a ward’s mental health condition needs to be stabilized before the ward can benefit from specialized sex offender treatment. After a ward completes mental health treatment (during which he also receives some sex offender treatment), he usually is placed in a general population facility before being placed in a specialized sex offender program. This is what happened with Alan. Because Alan was in the general population only five weeks before he was transferred to the county jail for proceedings on his petition, Woodward testified it was not surprising he had not yet been placed in a sex offender program. “[A]t this point there would be a very abbreviated wait time [for placement in a sex offender program] if he was in general population right now . . . .” Brunshay Davis, a CYA Casework Specialist, testified that in her experience any ward referred from Oak Lodge for a sex offender program was placed in such a program.
Dr. Peter Bradlee, a psychologist who treated Alan for three years beginning in 2000 and had recently reevaluated Alan, testified that he had matured in significant ways. He opined that Alan was less likely to reoffend than 99 percent of people in his situation. He recommended intensive individual therapy for Alan in an inpatient setting, but opined that Alan could safely be placed in outpatient treatment. He testified that Alan would not benefit from being simply warehoused at the CYA.
On November 27, 2006, the court issued a written order denying the petition. The court found that the CYA was substantially failing to provide Alan with the reformatory treatment he needed. “However, rehabilitation through treatment is not the only rehabilitative function of the [CYA]. . . . [¶] In the instant case, the Court finds that the minor’s commitment to [CYA] provides the minor with rehabilitation services through punishment. At its current duration, the punishment is not impermissible retribution. These findings do not condone the lack of sex offender treatment currently being provided by the institution to the minor. These findings do not preclude the minor from petitioning again if the treatment he receives continues to be inadequate and the period of incarceration becomes retributive. [¶] The minor has made significant gains at [CYA] and the Court commends the minor for those gains. He is ready to commence sex offender treatment.” Alan appeals from this order.
Discussion
I. Denial of Petition to Modify Commitment
Alan argues the juvenile court erred by denying the petition to modify his commitment order. We first set forth the governing legal standards and conclude the court acted within its discretion in denying the petition. We then consider Alan's challenges to the sufficiency of the evidence of a crime requiring sex offender treatment and reject Alan's arguments.
A. Governing Legal Standards
Under section 779, a juvenile court may modify or set aside a CYA commitment order as long as its ruling does not interfere with the management of CYA correctional schools or the transfer and parole of CYA wards. (§ 779.) When a ward is committed to the CYA, direct supervision over the ward shifts from the juvenile court to the CYA. (In re Owen E. (1979) 23 Cal.3d 398, 404.) Thus, the juvenile court cannot substitute its judgment for the CYA’s and set aside a commitment order simply because it disagrees with how the CYA is handling the ward. As the Supreme Court has explained, the juvenile court “may not act to vacate a proper commitment to CYA unless it appears CYA has failed to comply with law or has abused its discretion in dealing with a ward in its custody.” (Id. at p. 406.)
“The court committing a ward to the Youth Authority may thereafter change, modify, or set aside the order of commitment. Ten days' notice of the hearing of the application therefor shall be served by United States mail upon the Director of the Youth Authority. In changing, modifying, or setting aside the order of commitment, the court shall give due consideration to the effect thereof upon the discipline and parole system of the Youth Authority or of the correctional school in which the ward may have been placed by the Youth Authority. Except as provided in this section, nothing in this chapter shall be deemed to interfere with the system of parole and discharge now or hereafter established by law, or by rule of the Youth Authority, for the parole and discharge of wards of the juvenile court committed to the Youth Authority, or with the management of any school, institution, or facility under the jurisdiction of the Youth Authority. Except as provided in this section, this chapter does not interfere with the system of transfer between institutions and facilities under the jurisdiction of the Youth Authority. This section does not limit the authority of the court to change, modify, or set aside an order of commitment after a noticed hearing and upon a showing of good cause that the Youth Authority is unable to, or failing to, provide treatment consistent with Section 734.
Section 779 also provides, “This section does not limit the authority of the court to change, modify, or set aside an order of commitment after a noticed hearing and upon a showing of good cause that the Youth Authority is unable to, or failing to, provide treatment consistent with Section 734.” Section 734 in turn provides, “No ward of the juvenile court shall be committed to the Youth Authority unless the judge of the court is fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided by the Youth Authority.” Thus, a juvenile court may set aside a CYA commitment if it finds the CYA is unable to or is failing to provide reformatory educational discipline or other treatment that will probably benefit the ward.
We review a juvenile court’s ruling on a petition to set aside a CYA commitment for abuse of discretion. (In re Antoine D. (2006) 137 Cal.App.4th 1314, 1320.)
B. Juvenile Court Acted Within Its Discretion in Denying the Petition
The juvenile court acted within its discretion in denying Alan’s petition based on findings that Alan had benefited from and would probably continue to benefit from reformatory education discipline and other treatment provided by the CYA. The court found Alan had received “rehabilitation services through punishment” during his commitment. Nonretributive punishment for rehabilitative purposes is consistent with the purposes of the juvenile justice system. (In re Michael D. (1987) 188 Cal.App.3d 1392, 1396; § 202, subds. (b), (e).) The court specifically found that in Alan’s case the punishment of CYA confinement at its current duration was not retributive. The court also found that Alan had made significant gains at the CYA from the services he had received at CYA.
The court further concluded that Alan was likely to benefit from treatment if his CYA commitment continued. The court commented that Alan was ready to commence sex offender treatment and clearly anticipated that he would receive those services when he returned to the CYA. Substantial evidence was presented at the evidentiary hearing that Alan could be promptly placed in a sex offender program upon his return to the CYA and the court invited Alan to again petition the court if he did not receive those services.
C. Punishment as Treatment
Alan argues that a proper disposition for a ward may include punishment as a complement to treatment, but not as a substitute for treatment. He argues that the court erred by continuing Alan’s commitment to the CYA after finding that, although he was not receiving treatment, he was benefiting from the punishment aspect of CYA confinement. Accepting for purposes of argument Alan’s premise that a disposition must include some form of treatment in addition to punishment, we conclude there was no error.
First, the juvenile court did not find that Alan had received only punishment and no treatment during his CYA commitment. Instead, the court found that as of the date of the hearing CYA was “substantially failing to provide the minor with the [sic] much of the reformatory treatment his mental and physical condition require[d]” and specifically cited the lack of sex offender treatment and the lack of consistent information provided to Alan’s treatment team during his commitment. (Emphasis added.) The court heard evidence that Alan had received mental health treatment at both Redwood Lodge and Oak Lodge, including some sex offender treatment.
Second, the court clearly anticipated that Alan would receive treatment in addition to punishment during his continuing commitment at CYA. The court wrote that it did “not condone the lack of sex offender treatment currently being provided by the institution to the minor” and invited Alan to file another petition if his treatment continued to be inadequate after his return to the CYA. The court wrote that Alan was “ready to commence sex offender treatment” and it had received evidence that Alan likely would be promptly placed in a sex offender program upon his return to CYA.
D. Effect of Original Commitment Order
Alan argues the court erred because its order was inconsistent with the original commitment order and with this court’s disposition in appeal number A106429.
There was no conflict between the rationale underlying the original commitment order and the order denying the petition. The judge who originally committed Alan to the CYA commented on the quality of the sex offender program at the CYA and about Alan’s need to have at least three years to rehabilitate himself. The judge also stated that he had taken into consideration all of the information that had been submitted by both sides at the disposition hearing. The prosecutor had argued that, in addition to therapeutic rehabilitation, a CYA commitment would serve the purposes of punishment and protection of the community given Alan’s serious criminal history. When the court specifically asked why it should order Alan committed to the CYA rather than the Hand Up program, the prosecutor again cited the need to protect the community due to Alan’s serious violent offenses and continuing disturbing behavior in juvenile hall, despite four years of individual counseling. The record does not demonstrate that the court committed Alan to the CYA solely because it expected he would immediately receive sex offender treatment. Moreover, this court’s opinion in the prior appeal similarly stated that Alan’s CYA commitment was justified by his criminal history, disturbing behavior in juvenile hall, and lack of rehabilitation despite years of therapy. (In re Alan W., A106429, slip op. at pp. 10-11; In re Alan W., A106429, modification order filed April 12, 2005.)
II. Sufficiency of Evidence of Crime Requiring Sex Offender Treatment
Alan argues insufficient evidence was presented at the jurisdictional hearing to prove that he committed an offense that triggers the sex offender treatment requirement of section 727.6. Although the argument was not raised during the jurisdictional hearing or in the first appeal, Alan argues he is entitled to relief because his attorneys in those proceedings failed to provide him with effective assistance of counsel. We conclude the argument fails on the merits.
Under section 727.6, a minor who is adjudged a ward of the court for the commission of a ‘sexually violent offense’ and who is committed to the Department of the Youth Authority must be given sexual offender treatment. (§ 727.6.) Section 6600 defines “sexually violent offense” to include a felony violation of Penal Code section 289 (hereafter, section 289) when committed by force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person, or threatening to retaliate in the future against the victim or any other person. (§ 6600, subd. (b).) Alan’s underlying offense was section 289, subdivision (a)(1), which is sexual penetration accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. (§ 289, subd. (a)(1)) Alan argues the prosecution did not prove at the jurisdictional hearing that he committed sexual penetration by means of force. (He does not address the other means of committing sexual penetration under section 289, subdivision (a)(1).) Rather, he argues, the evidence only showed that he committed sexual penetration while the victim was asleep, which would be a violation of section 289, subd. (d)(1). Sex offender treatment is not required for wards found to have violated section 289, subdivision (d)(1). (§§ 727.6, 6600, subd. (b).)
When a conviction is challenged on the ground of insufficient evidence, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Griffin (2004) 33 Cal.4th 1015, 1028; In re Jose P. (2005) 131 Cal.App.4th 110, 115.)
Substantial evidence in the record of the jurisdictional hearing supports a finding that Alan used force to overcome the victim’s will. The victim testified that when she awoke, Alan’s legs were between her legs, one of his hands was on her arms, and one of the fingers of his other hand was inside her vagina. She testified:
A. I told him to get off of me.
Q. What, if anything, did he say?
A. He said, ‘no,’ and then he said, ‘stop moving.’
Q. Did he say anything else?
A. No -- or, no. Yes, he did. I’m sorry. He said -- um, he said that he wanted me to fulfill his sexual frustration.
Q. What did you say?
A. No.
Q. What was he doing while he said that?
A. Still had his finger in me.
Q. What were you doing?
A. Trying to get him off me.
Q. How were you doing that?
A. Kicking and moving.
* * *
Q. How long did Alan have his finger inside your private area?
A. Only a couple seconds.
Q. Then what happened?
A. And then I got him off of me.
Q. How did you get him off of you?
A. I kicked him and pushed him off of me after that, and then I got dressed and ran downstairs.
Q. So at some point, you were able to get your hands free?
A. Yes.
Q. And how did you get your hands free?
A. After I kicked him and then he moved, and then I got my hands free, and then I pushed him off of me.
From this testimony, the juvenile court could find beyond a reasonable doubt that Alan kept his finger in the victim’s vagina while holding her arms and resisting her kicks and pushes for at least a couple of seconds. These acts satisfy the force requirement for a sexual assault charge: “in a forcible rape prosecution the jury determines whether the use of force served to overcome the will of the victim to thwart or resist the attack, not whether the use of such force physically facilitated sexual penetration or prevented the victim from physically resisting her attacker.” (People v. Griffin, supra, 33 Cal.4th at p. 1027.) In Griffin, the court held there was sufficient evidence of force where the defendant pinned the victim’s arms to the floor as he penetrated her vagina with his penis and the victim unequivocally testified that she did not consent to the act of intercourse, which was accomplished against her will. (Id. at p. 1029.) Here, the victim testified that Alan kept his finger in her vagina while he held her arms as she kicked and pushed him and responded “No” when he said he wanted her to fulfill his sexual frustration. This testimony establishes the crime of forcible sexual penetration.
The fact that the penetration might have begun while the victim was asleep does not undermine the finding that it was accomplished by force. In In re John Z., the Supreme Court upheld a forcible rape finding where the victim initially consented to penetration by the minor, but withdrew her consent and the minor continued the penetration against her will. (In re John Z. (2003) 29 Cal.4th 756, 757-758.) Similarly here, although the victim was asleep when the penetration started, she awoke during the penetration, voiced her objection and attempted to push Alan off of her, yet Alan maintained the penetration for a couple of seconds by holding her arms and resisting her kicks and pushes. He thus accomplished the continued penetration by means of force.
Alan cites evidence that the victim pushed him off of her at a time when he had pinned her legs together and did not have his finger in her vagina. This evidence does not undermine our conclusion that there was substantial evidence Alan used force to overcome the victim’s will when she first woke up and while he still had his finger in her vagina. The victim testified that she awoke with Alan’s hand on both of her arms and his finger in her vagina. She told Alan to get off of her. He told her to stop moving because he wanted her to fulfill his sexual frustration and she said, “No.” Throughout this exchange, she testified, Alan had his finger inside her. Even if Alan later removed his finger from her vagina and pinned her legs together while she continued to resist him, that later struggle would not negate the fact that Alan had used force to accomplish the continuing act of penetration contrary to the will of his victim.
Alan argues that even if there was evidence that he used force to accomplish the crime of sexual penetration, the appropriate charge is the more specific offense of sexual penetration while the victim was asleep, a violation of section 289, subdivision (d)(1). He relies on In re Williamson, which held that where a specific statute prohibits the same crime as a more general statute, the court will infer a legislative intent that the crime be punished only under the specific statute. (In re Williamson (1954) 43 Cal.2d 651, 654-655.) The In re Williamson rule applies (1) when each element of the general statute corresponds to an element on the face of the special statute, or (2) when it appears that a violation of the special statute will necessarily or commonly result in a violation of the general statute. (People v. Powers (2004) 117 Cal.App.4th 291, 299.) Here, section 289, subdivision (a)(1) requires proof that the sexual penetration was accomplished by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. Section 289, subdivision (d)(1) requires proof that the victim was unconscious or asleep during the penetration. Those elements do not correspond and a violation of subdivision (d)(1) does not necessarily or commonly result in a violation of subdivision (a)(1).
Disposition
The November 27, 2006 order denying the petition to modify or set aside the commitment order is affirmed.
We concur. JONES, P.J. SIMONS, J.
“However, before any inmate of a correctional school may be transferred to a state hospital, he or she shall first be returned to a court of competent jurisdiction and, after hearing, may be committed to a state hospital for the insane in accordance with law.” (§ 779.)