In re Emilio C.

Full title: In re EMILIO C., a Person Coming Under the Juvenile Court Law THE PEOPLE…

Court: Court of Appeal of California

Date published: Apr 24, 2008

No. F053409 (Cal. Ct. App. Apr. 24, 2008)

Opinion

F053409

4-24-2008

In re EMILIO C., a Person Coming Under the Juvenile Court Law THE PEOPLE, Plaintiff and Respondent, v. EMILIO C., Defendant and Appellant.

Jackie Menaster, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Dawn S. Mortazavi, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED

Harris

INTRODUCTION

In this proceeding minor appellant Emilio C. was found to have committed two counts of sexual offenses against a child and one count of vandalism causing over $400 in damage. He was committed to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ). On appeal, appellant asserts the juvenile court abused its discretion by ruling the child witness was competent to testify, by admitting evidence of appellants uncharged sexual conduct and by committing appellant to the DJJ. Appellant also asserts the evidence is insufficient to support the jurisdictional and dispositional findings and orders as well as the finding appellant would benefit from the commitment to the DJJ. We will find appellants contentions to be without merit. However, our review of the record reveals numerous discrepancies in the pleadings, adjudication, disposition and reporting as to count 1. For such reason and as fully explained below, we will vacate the jurisdictional findings in so far as they relate to count 1 and the dispositional order and remand to the juvenile court for further appropriate hearing, reconsideration and orders consistent with the views expressed herein.

STATEMENT OF THE CASE

On April 3, 2007, the district attorney filed a juvenile wardship petition (Welf. & Inst. Code, § 602, subd. (a)) in juvenile court alleging the following criminal counts as to appellant Emilio C.:

Count 1 alleged in pertinent part:

"On or about and between February 28, 2006 and March 29, 2007, in the County of Tulare, the crime of LEWD ACT UPON A CHILD, in violation of PENAL CODE SECTION 288(c)(1), a FELONY, was committed by [Emilio C.], who did willfully, unlawfully and lewdly commit a lewd and lascivious act TO WIT: WHEN THE MINOR MADE A.V. LICK HIS PENIS, upon and with the body of A.V., who was 4 years old, with the intent of arousing, appealing to, and gratifying the lust, passions, and sexual desires of the MINOR, who was at least 10 years older than A.V."¹

1 The reason we set forth the specific allegation of count 1 will become apparent in part VII below.

Counts 2 and 4—lewd and lascivious act upon a child (Pen. Code, § 288, subd. (a)); and

Count 3—rape by foreign object (Pen. Code, § 289, subd. (a)).

Each count further contained an allegation of substantial sexual conduct (Pen. Code, §§ 288, 288.5, 1203.066, subd. (a)(8)).

On April 4, 2007, the court conducted a hearing and detained the minor in secure custody.

On April 17, 2007, the court filed a minute order noting: "Petition orally amended to PC 288(a)(c)(1) due to clerical error on orig document." At some point, someone added the suffix "(c)(1)" to the Penal Code section 288, subdivision (a) violation charged in count 4 of the petition.

On May 24, 2007, the district attorney filed a first amended wardship petition (Welf. & Inst. Code, § 602, subd. (a)) in juvenile court, alleging the following criminal counts as to appellant Emilio C.:

Count 1—a violation of "PENAL CODE SECTION 288(c)(1)"² setting forth the same specific factual allegations as set forth above in the original petition;

2 Although on April 17, 2007, the court orally amended the original petition to allege a violation of Penal Code section "288(a)(c)(1)," that amendment was not incorporated in the first amended petition filed on May 24, 2007.

Counts 2 and 4—lewd act upon a child under age 14 (Pen. Code, § 288, subd (a));

Count 3—rape by foreign object (Pen. Code, § 289, subd. (a));

Counts 1, 2, 3 and 4 each further contained an allegation of substantial sexual contact (Pen. Code, §§ 288, 288.5, 1203.066, subd. (a)(8));

Count 5—first degree burglary, a serious and violent felony (Pen. Code, §§ 459, 462, subd. (a), 667.5, subd. (c), 1192.7, subd. (c)); and

Count 6—vandalism causing over $400 in damage (Pen. Code, § 594, subd. (a)).

On May 29, 2007, the court and counsel agreed to an amendment by interlineation of count 4 to allege a violation of Penal Code section 288, subdivision (a) by the placement of appellants penis inside the victims vagina.

On the same date, the court conducted a contested jurisdictional hearing and, on motion of defense counsel, amended count 5 to second degree burglary.

On May 30, 2007, the court conducted a second day of contested jurisdictional hearings, found counts 1, 2, and 6 to be true beyond a reasonable doubt, and dismissed counts 3, 4, and 5 as not having been proved beyond a reasonable doubt.

On June 12, 2007, the deputy probation officer filed a memorandum with the superior court questioning whether the court had made rulings as to the special allegations related to "counts one through four."

On June 19, 2007, the court resumed the jurisdictional hearing and found the special allegations of the petition to be true beyond a reasonable doubt.

On July 13, 2007, the probation officer filed a report in preparation for the dispositional hearing. Although the first amended petition alleged a violation of Penal Code section 288, subdivision (c)(1) in count 1 and a violation of Penal Code section 288, subdivision (a) in count 2, the deputy probation officer indicated that section 288, subdivision (c)(1) was the offense underlying each of those counts. The deputy probation officer recommended a total commitment of nine years four months, less 117 days of credit for time served.

On July 18, 2007, the court conducted a dispositional hearing, removed appellant from the physical custody of his parents, committed him to the DJJ, and awarded 117 days of credits for time spent in juvenile hall awaiting disposition.

On July 19, 2007, the court filed an order committing appellant to the DJJ. The court imposed a term of eight months on one count of "Fel, 288(c)(1) PC," a term of eight years on a second count of "Fel, 288(c)(1) PC," and a term of eight months on a count of Penal Code section 594, subdivision (a).

On July 24, 2007, appellant filed a timely notice of appeal from the "Findings and Orders of the Court which were made at the Jurisdictional Hearing heard on May 29, 2007, May 30, 2007 and June 19, 2007 and the Disposition Hearing held on July 18, 2007."³

3 A judgment in a proceeding under Welfare and Institutions Code section 601 or 602 may be appealed from, by the minor, in the same manner as any final judgment. (Welf. &. Inst. Code, § 800, subd. (a).) A commitment to the California Youth Authority, now the California Department of Corrections and Rehabilitation, Division of Juvenile Justice, is a judgment within the meaning of the Penal Code section 1191 et seq. and is appealable. (Welf. & Inst. Code, § 1737.5; Gov. Code, § 12838, subd. (a).)

STATEMENT OF FACTS

Introduction

The 17-year-old appellant lived with his mother, teenage brother, sister, and the sisters two minor children in a two-bedroom apartment in the City of Visalia. The instant case entails allegations of sexual misconduct between appellant and his niece (the sisters four-year-old daughter).

Facts Underlying the Second Degree Burglary/Vandalism Count

Tom Dukes was a self-employed electrician in Tulare County. On November 30, 2006, he was working on a structure in the City of Visalia. Although Dukes would lock the doors on the structure at the end of each work day, the doors were unlocked when he returned to the project the following morning. Dukes contacted Visalia police about the situation. The structure was located at the corner of West Race and North Court Streets.

Valerie Deveraux owned a building on North Court Street in Visalia. The building was a residential structure that had been converted into a commercial building. Deveraux contacted Visalia police because someone had broken into the building and operated the fire extinguisher in the basement and first floor. Deveraux spent $450 to clean and repair the damage to the building.

Visalia Police Officer Bryan Pinto responded to a burglary call on West Race Street on November 30, 2006. Pinto met with appellants mother and determined a burglary had taken place at Devereauxs building, which was directly across from the West Race Street residence. Officer Pinto met with Tom Dukes at the North Court Street building. Pinto examined the residence and determined there was fire damage to the basement and fire extinguisher residue in both the basement and first floor closets. Pinto eventually interviewed appellant minor about the North Court Street structure. Appellant told Pinto he had broken into the building on three occasions. He said he discharged the fire extinguisher and stole some toilet paper from the residence on the first occasion.

Facts Underlying the Sexual Misconduct Counts

A.V., the victim of the alleged offenses, was the subject of a CART⁴ interview. A CART interview is conducted by a forensic interviewer who specializes in interviewing of minors under age 14. A CART interview is typically recorded by audio and video devices and is played and screened for the detective and prosecutor assigned to the case. Laura Boland conducted A.V.s CART interview from 3:00 to 3:32 p.m. on March 30, 2007. Visalia Police Officer Paul Esquibel and Deputy District Attorney Ian Marty observed the interview in progress from another room.

4 Appellant in a footnote in his opening brief states: "The reporters transcript describes the interview as being conducted by the `CART team. This is never explained. Presumably, the term is the `SART team, the Sexual Assault Reporting Team...." We believe the abbreviation stands for Child Abuse Response Team. We chose to use CART as set forth in the reporters transcript.

A.V. testified she was three or four years old, did not know how to count, but did know her colors. A.V. said she lived with her mother, grandmother, and brother. Although appellant was her uncle, A.V. referred to appellant as her "Mijo." She said she used to live with Mijo but now he was in jail. A.V. testified she hated appellant because he was mean to her and had "sex" with her. She defined "sex" as "kissing." A.V. said appellant had her kiss him on the lips in the bathroom and bedroom of their apartment. She described appellants conduct as "really nasty."

A.V. also testified appellant touched her "cloche" a lot with his "weanie."⁵ A.V. said appellant had her "lick his weenie" when they were in the bedroom. A.V. described how she touched appellants "weenie" and cupped her hands together in a circle and moved them up and down. She described the licking of the "weenie" by making a sucking motion with her mouth. A.V. testified she and appellant undressed each other when they were in her room. A.V. and appellant then got under a blanket and lay next to each other. A.V. said appellant touched inside her "coochie" with his hands.

5 On direct-examination during the Peoples case-in-chief, A.V. said appellant touched his "weenie" on her "cloche." When asked about the location of a "cloche," A.V. indicated her crotch area. Later in her testimony, A.V. examined an anatomical picture of a girl and identified the vaginal area as the "cloche." Lisa Sobalvarro, investigator with the Tulare County Public Defenders Office, interviewed A.V. Sobalvarro prepared a report of the interview and stated that appellants "weenie" touched A.V.s "coochie." When asked about the term "coochie" at trial, Sobalvarro explained, "[t]hats as best as I could determine" from her conversation with A.V. A.V. also indicated a "weenie" referred to a boy and pointed out the penis of an anatomical picture.

A.V. said appellant kissed her on the bed and she demonstrated his commission of oral sex by using dolls. At the CART interview, A.V. said she went to her bedroom because appellant told her, "Im going to have sex with you." At the jurisdictional hearing, she described appellants penis as being both soft and hard and saw "cheese" come out of his weenie and onto her stomach. A.V. said she felt pain in her "cloche and [her] stomach" when appellant touched her with his penis. After A.V. saw the "cheese," appellant went to the bathroom, got some toilet paper, and he ate the cheese-like substance. A.V. testified that on another occasion appellant had her touch his penis by forming a circle with her hands. She "grabbed it [the penis] tight" and she took his "weenie off." A.V. said she was scared of his weenie. She also indicated the sexual encounters with appellant occurred on multiple occasions.

A.V. testified she told her mother, grandmother, and two of her aunts about the sexual abuse. A.V. said appellants brother (another uncle) walked in on appellant when he was kissing A.V. A.V. also remembered her mother walking by and seeing appellant touch her. A.V. said her mother kicked appellant out of the house but did not contact the police. A.V.s mother denied being a witness to any sort of misconduct.

On March 29, 2007, Visalia Police Officer Osvaldo Dominguez was dispatched to investigate certain activities. Officer Dominguez spoke to A.V. and then contacted Detective Esquibel, a member of the Visalia Police Department Sexual Assault Unit. Detective Esquibel did not personally interview A.V. because he knew she would be subject to a CART interview. Laura Boland conducted the CART interview of A.V. on the following day, March 30, and Esquibel and Deputy District Attorney Marty observed the interview. After the interview, Detective Esquibel went to A.V.s house and asked her to identify "Mijo" in a family photograph. A.V. identified appellant as "Mijo." Esquibel also interviewed appellants brother, who denied witnessing any misconduct or telling appellant he was going to contact the police. After the identification and the conversation with appellants brother, Esquibel placed appellant under arrest.

A.V.s mother testified that appellant was her younger brother. She told officers that her daughter had alleged sexual abuse but she laughed and giggled when she brought up the subject. As a result, A.V.s mother did not pay attention to the allegations. The mother said she would bring her boyfriends home between 2:00 a.m. and 3:00 a.m. and would place A.V. on her brothers bed, which was located in the mothers bedroom. A.V.s mother admitted engaging in sexual intercourse with a boyfriend while A.V. was present in the second bed. A.V.s mother said that her own mother (A.V.s grandmother) slept in the second bedroom of the apartment. A.V.s mother said her siblings—appellant and his brother—slept on the couch.

According to A.V.s mother, A.V. had barged into the bathroom and caught the occupant by surprise on past occasions. A.V.s mother also said A.V., her mother and the two male siblings (appellant and his brother) at one time all lived in the living room of a sisters residence. The mother said A.V.s grandmother was A.V.s primary caretaker when A.V.s mother worked. If the grandmother was unavailable, then A.V. would stay with the mothers siblings (appellant or his brother).

A.V.s mother testified she did take A.V. to the doctor to get a physical. The doctor glanced at A.V.s genital area and said it she was fine. However, A.V.s mother acknowledged: "She [the physician] really didnt do a thorough, thorough look." A.V.s mother said she had not noticed any changes in A.V.s behavior after appellant was removed from her residence. However, A.V. began to tell her mother that she hated appellant after A.V. spoke with police. A.V.s mother told A.V. that no one was supposed to touch her body. A.V.s mother also said that family conversations were "open" and that she and her siblings would utter the "F word, the B word, [and] asshole," and would utter such phrases as "suck dick," "someones choking on sperm," and "go molest yourself." A.V.s mother acknowledged that she had previously subscribed to cable channels carrying pornographic movies but did not believe that A.V. had been exposed to them.

Defense

J.R., one of A.V.s uncles, was the brother of A.V.s mother and of appellant. J.R. testified on appellants behalf. J.R. said he observed A.V. playing with the boys and acting like a tomboy on his visits to their home. J.R. also said he himself had been molested as a child. J.R. said his molester was his godfather. According to J.R., the word "molestation" was often employed in their family as an insult. Someone would say "go molest yourself" to describe masturbation. On one occasion, A.V. was present when J.R. simulated masturbation and jokingly asked his brothers, "What are you going to do, whack it?" J.R. said he was aware that A.V. had made accusations of molestation. He testified: "My mom told me. My sister said it. She [A.V.] came out and said that [P.s husband] touched her, [appellant] touched her, [the ex-boyfriend of A.V.s grandmother] touched her. I was surprised she didnt say me but thank God I didnt visit as much because I would probably be sitting there right where my brother [appellant] is." J.R. said he was aware that appellant and one of their sisters would fight.

A.V.s grandmother said she was not aware of any behavioral changes in A.V. The grandmother said when she and A.V.s mother were not available, appellants brother was the primary babysitter because the brother always wanted to be paid. Although appellant was older, the brother wanted to earn money and would pay more attention to A.V. and her brother than appellant would. The grandmother said she had not heard or seen anyone describe or depict sexual acts in her household. The grandmother also said A.V. followed her more than A.V.s mother because the grandmother was A.V.s primary caretaker. The grandmother was aware that A.V. had entered the bathroom of their residence when appellant occupied it. A.V. never mentioned any molestation to the grandmother. The grandmother did not know of any inappropriate touching of A.V.

Appellants brother, the babysitter, said he never saw appellant inappropriately touch A.V. The brother said he had never threatened to contact the police. The brother also said he was present in the house whenever appellant babysat A.V. and her brother. The brother never saw appellant take A.V. to the bathroom. The brother also said appellant did not get along with either A.V. or with A.V.s brother. According to appellants brother, A.V. never barged into the bathroom when he occupied it. However, he would always close the door. According to appellants brother, family members used foul and sexually explicit language at home. A.V. was present during such conversations but no one depicted sexual acts.

P., another sister of appellant and A.V.s mother, said A.V. would spend the night at her house when P.s husband was working. On one evening, P. asked A.V. if her uncles were touching her and A.V. said appellant had touched her and made her "suck his dick." A.V. sounded serious when she spoke with P. but giggled when she and P. spoke to A.V.s mother about the matter. P. persuaded A.V.s mother to contact the police. The police were contacted one week after A.V. told P. that appellant had touched her.

Lisa Sobalvarro, an investigator for the Tulare County Public Defender, said she interviewed A.V. on May 26, 2007. Sobalvarro noted that A.V. used the word "hate" in various contexts: "She hated the clothes she was going to wear. She hated her little brother. She hated Emilio. She used it several times." A.V. told Sobalvarro that other family members watched appellant molest her on several occasions and on one occasion the molestation occurred at the zoo. She also told Sobalvarro that appellant had both male and female anatomical parts. A.V. told Sobalvarro she did not tell the truth to everybody. A.V. also told Sobalvarro that when she was in "the room" with appellant, they would get under a blanket, they would get close together, and appellant would kiss her and make her lick him.

Appellant testified on his own behalf. Appellant said he was 16 years old at the time of the adjudication hearing. He denied any inappropriate touching of his niece A.V. and denied that A.V. ever inappropriately touched him. He said his family lived in a small apartment consisting of two bedrooms, a living room, a bathroom, and a kitchen. Appellant said on several occasions A.V. had walked in as he was coming out of the shower. He explained their bathroom door has a lock but the mechanism is jammed so that it does not properly function. Appellant said A.V. was annoying because she would follow him around and "she bugs and bugs." According to appellant, the family commonly used such terms as "weenie," "coochie," "sucking a dick," "kissing," "jacking off," and various terms for anal sex. Appellant acknowledged that A.V. would hear this kind of language in the apartment. Appellant admitted engaging in anal sex with his brother when appellant was about 14 years of age and the brother was about 12 years of age. Appellants mother called the police to address the situation.

DISCUSSION

I.

COMPENTENCY TO TESTIFY

On appeal appellant first contends the juvenile court abused its discretion by ruling that four-year-old A.V., the complaining witness, was competent to testify.

A. Facts Underlying Contention

The district attorney called A.V. to testify at the jurisdictional hearing on May 29, 2007. When asked her age, A.V. said she was "[m]aybe 4 or 3." When the deputy district attorney asked whether A.V. was a little nervous and scared, A.V. nodded her head. When asked whether she knew how to count, A.V. shook her head. When asked whether she knew her colors, A.V. responded, "Blue and red." In response to further questions, A.V. said her chair was black and the prosecutors shirt was black. The prosecutor then asked, "[Y]ou know what telling the truth is?" She responded by shaking her head. When asked whether it is good to say things that are not true, A.V. initially responded by shaking her head in the negative. When the prosecutor asked the same question in a slightly different way, she nodded her head in an up and down motion. In response to another question, A.V. said she lived with her mother, grandmother, and brother "and thats all."

At that point in the questioning, the court indicated that A.V.s mother could be present in the courtroom. After A.V.s mother was seated, the prosecutor asked A.V. whether the chair she was seated in was "black." She responded, "No, your jacket is black." The prosecutor replied, "[T]hats right. [¶] So if I say that my jacket is black; right, is that true?" A.V. nodded her head. The prosecutor then asked, "And is it a good thing to tell the truth?" A.V. nodded in the affirmative. The prosecutor ultimately asked, "So [A.V.], if I ask you today to only tell us things that actually happened that are true, can you do that?" A.V. nodded her head in the affirmative.

On voir dire examination, defense counsel asked A.V. whether she knew what it meant to not tell the truth. A.V. nodded her head in the affirmative. She also nodded in the affirmative when defense counsel asked whether A.V. "ever said something that was not the truth." When defense counsel asked for an example of such a statement, A.V. first said "I didnt know" and then said, "I cant think." A.V. shrugged her shoulders when counsel asked whether she knew the difference between a big lie and a little lie. Counsel also asked, "What happens if you say something thats not true, what does your mother do; does she do anything?" A.V. said her mother hits her with a spoon. Upon further questioning, A.V. said she did not know the meaning of the word "punished" and did not know whether she gets hit with a spoon for doing something bad.

Defense counsel also questioned A.V. about her brother. A.V. did not know his age and said she was "bigger" than her brother. She also said her brother beat her up. When counsel asked A.V. about talking with the judge or other people prior to the hearing, A.V. said she did not know anything and also said, "Im so scared." A.V. said she was not asked questions about colors earlier in the proceeding and did not know why she was in court that day. When counsel asked A.V. whether she watched television, A.V. said she watched Sponge Bob. Counsel asked, "And is that real when he [Sponge Bob] talks?" A.V. answered in the affirmative.

B. Ruling of the Juvenile Court

At that point in the proceeding, defense counsel moved to disqualify A.V. from testifying under Evidence Code section 701 because "shes demonstrated she does not have the capacity to tell the difference between a truth and a lie." The court ruled:

"Well, shes certainly capable of expressing herself in a certain manner in the matter at issue. [¶] The issue raised by counsel is whether or not shes capable of understanding the duty to tell the truth. She is four years of age, and such examples as whether or not she believes Sponge Bob to be real, theres no showing that she understands what animation is. Its difficult for adults to appreciate, put themselves in the shoes of a four-year-old person.

"Im going to allow her to testify and overrule the objection. Obviously, credibility of every witness is an issue, and the court will take into consideration the wholeness of her testimony in deciding the issue of credibility."⁶

6 In a footnote to his opening brief, appellant states: "[A.V.] was never sworn as a witness and never took any oath to tell the truth." Every witness before testifying shall take an oath to tell the truth. (Evid. Code, § 710.) "Even a young child must be sworn. [Citation.] However, no constitutional provision is violated if unsworn testimony is received. If the adequacy of the oath taking is not raised in the trial court, the issue is deemed waived on appeal." (In re Katrina L. (1988) 200 Cal.App.3d 1288, 1299.)

C. Applicable Law

Under Evidence Code section 700, every person, irrespective of age, is qualified to be a witness. A persons ability to perceive and recollect goes only to the extent of his or her personal knowledge, and therefore impacts solely the admissibility of his or her proffered testimony. (Evid. Code, § 702.) By contrast, the factors that bear on a persons disqualification as a witness are (1) the incapacity to express oneself about the subject of the testimony so as to be understood or (2) the incapacity to understand the duty of a witness to tell the truth. (Evid. Code, § 701.) All witnesses, regardless of age, are presumed qualified and may testify unless a ground for disqualification is proved. (Evid. Code, § 700; Adamson v. Dept. of Social Services (1988) 207 Cal.App.3d 14, 20.) The burden of proof is on the party who objects to the proffered witness and a trial courts determination will be upheld on appeal in the absence of clear abuse of discretion. (People v. Anderson (2001) 25 Cal.4th 543, 573.) The challenging party must establish a witnesss incompetency by a preponderance of the evidence. (People v. Farley (1979) 90 Cal.App.3d 851, 869.) Unlike a witnesss personal knowledge, a witnesss competency to testify is determined exclusively by the court. (3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 61, p. 93.)

D. Appellants First Contention

In the instant case, appellant initially contends A.V. was incompetent because she was unable to understand the duty to tell the truth:

"... Essentially, everything [A.V.] said about being truthful was contradicted, sometimes simultaneously, by her statement to the contrary.

"[A.V.] was asked whether it is good to say things that are not true. [A.V] said yes but apparently shook her head in the negative. When [A.V.] was asked again, she nodded her head. The third time [A.V.] was asked if it is a good thing to tell the truth, with the prosecutor asking, `Yes?, [A.V.] nodded.

"When [A.V.] was asked to tell the court only things that actually happened, [A.V.] nodded her head. When [A.V.] was asked what a big lie is versus a little lie, [A.V.] shrugged her shoulders as though not sure. [A.V.] was asked, `Do you know what punishment means?; she said, `No. [A.V.s] own mother was asked if [A.V.] understand the difference between lying and the truth; she responded, `I dont know.

"The prosecutor asked if [A.V.] remembered saying that she would only tell things that really happened. [A.V.] indicated no, then yes. The court asked [A.V.] to `promise to tell us if something happened? [A.V.] refused, saying, `No. I cant. Im too scared. I cant. When the court asked [A.V.] why she was scared, she replied, `Because, somebody gonna kill me. The court noted that [A.V.] said this with a big smile on her face. The court said, `You promise not to make anything up? [A.V.] said, `Okay.

"Whatever else can be said about these statements, they reflect a total lack of capacity to understand a witnesss duty to testify truthfully. It cannot be the rule that to support the juvenile courts ruling, the times [A.V.] appeared to say she would tell the truth can be viewed in isolation. Literally every time [A.V.] said she would only say things that really happened, she also denied that she would say only things that really happened. No fair reading of the record in the instant case can result in the conclusion that there was substantial evidence [A.V.] understood she had a duty to testify truthfully."

As noted above, a witness is disqualified from testifying only if he or she is incapable of expressing himself or herself so as to be understood, or is incapable of understanding the duty of a witness to tell the truth. (Evid. Code, § 701, subd. (a)(1), (2).) Whether a witness has the capacity to communicate and an understanding of the duty to testify truthfully is a preliminary fact to be determined exclusively by the trial court. The trial courts determination will be upheld absent a clear abuse of discretion. (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1368.) A trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (People v. Carmony (2004) 33 Cal.4th 367, 377.) In reviewing the question of a witnesss competency, the reviewing court may examine the entire record made by the witness and is not restricted to the voir dire examination of the witness. (People v. Smith (1958) 162 Cal.App.2d 66, 69.)

In the instant case, A.V. stated she understood the difference between the truth and a lie and indicated she would only tell the truth to the court. When asked if various objects in the courtroom were the color black, A.V. truthfully indicated the objects were not black. She further identified objects that did bear the color black and acknowledged that it was a good thing to tell the truth. Later in her examination, however, A.V. said (a) she had spoken with the judge prior to proceedings when she had not done so; (b) she did not know the meaning of the word "punishment"; and (c) it was real when the character Sponge Bob talked on television. Such inconsistencies in testimony go to the minors credibility as a witness and not to his or her competency to testify. (In re Katrina L., supra, 200 Cal.App.3d at p. 1299.)

Appellant nevertheless contends portions of A.V.s testimony at the jurisdictional hearing reflected "a total lack of capacity to understand a witnesss duty to testify truthfully." A.V. said: (1) she was afraid someone was going to kill her but made the statement with a smile on her face; (2) appellant ate his own sperm; and (3) she pulled appellants penis off. At the jurisdictional hearing, A.V. recalled her CART interview with Laura Boland. A.V. said a chair could float on water and move around like a boat.⁷ A.V. also told Boland that the latter had a spider on her head. She further told Boland that appellant had two penises and that appellant died "from the cops." Lisa Sobalvarro, an investigator with the public defenders office, testified that she interviewed A.V. A.V. told her that everyone, including A.V.s mother and cousins, was present when appellant inappropriately touched her and that appellant had both a "coochie" and a "weenie." A.V.s mother testified that she did not know whether A.V. always tells the truth. The mother did not know whether A.V. understood the difference between truth and lying. The mother also testified she did not know whether sexual misconduct occurred.

7 We note that appellant relies on "Exhibit No. 3," a transcript of A.V.s videotaped CART interview prepared by the Tulare County Public Defenders Office. Appellant concedes this transcript was not entered into evidence in the juvenile court and was not included in the clerks transcript on appeal. On January 18, 2008, this court denied appellants application to augment the record on appeal with this transcript because appellant failed to show the transcript was filed or lodged in the trial court. (Cal. Rules of Court, rules 8.155, 8.340(c).)

To the extent appellant contends that A.V.s responses were unbelievable, this was an issue of credibility for the trier of fact and was not relevant to the issue of her competency as a witness. (People v. Lewis (2001) 26 Cal.4th 334, 361.)

E. Appellants Second Contention

Appellant further contends A.V. was incompetent for lack of ability to communicate. He maintains "the record makes it clear that she does not have the ability to perceive the events she described to the juvenile court or the ability to recollect or communicate about those events."

To testify, a witness must have personal knowledge of the subject of the testimony, i.e., a present recollection of an impression derived from the exercise of the witnesss own senses. To have personal knowledge, a witness must have the capacity to perceive and recollect. The capacity to perceive and recollect is a condition for the admissibility of a witnesss testimony on a certain matter, rather than a prerequisite for the witnesss competency. Upon a partys objection, a witnesss personal knowledge must be shown before the witness may testify regarding the matter. (Evid. Code, § 702, subd. (a).) If there is evidence that the witness has those capacities, the determination whether he or she in fact perceived and does recollect is left to the trier of fact. A trial court should allow a witnesss testimony unless no trier of fact could reasonably find that he or she has such personal knowledge. The fact that a witness has made inconsistent and exaggerated statements does not indicate an inability to perceive or recollect. In addition, a witnesss mental defect or insane delusions do not necessarily reflect the lack of capacity to perceive or recollect. Further, a witnesss uncertainty about his or her recollection of events does not preclude admitting his or her testimony. (People v. Lewis, supra, 26 Cal.4th at pp. 356-357; People v. Willard (1983) 155 Cal.App.3d 237, 240.)

Here, appellant contends:

"Surely, the claims made by [A.V.] raise more than questions about her competency to observe and relate the events she supposedly witnessed. In fact, her claims show a complete lack of such competency.

"[A.V.] said that [appellant] actually ate his own sperm, and liked it. [A.V.] said that she actually pulled [appellants] penis off. [A.V.] told the District Attorney interviewer, Laura, that a chair was a sailboat, that if you put the chair in water it would float and move around like a boat. [A.V.] told Laura that Laura had a spider on her head; this was obviously untrue. [A.V.] told Laura that [appellant] had two `weenies: `Him had two weenies. [A.V.] told Laura that Emilio had died `from the cops.

"[A.V.] told the Public Defender investigator, Lisa, that others were present during the inappropriate touching, at one point saying everyone was present, her mother and cousins. [A.V.] claimed that [appellant] once touched her inappropriately at the zoo, with others watching. Several times, [A.V.] claimed that [appellant] has a coochie and a weenie. [A.V.s] mother does not know if the crime at issue in the instant case happened; she has reservations about whether [A.V.] is telling the truth.

"Frankly, it is hard to imagine anyone recounting a story which more tellingly establishes the lack of ability to perceive events and the ability to recollect and communicate about events. [A.V.] thinks that cartoon characters are real. She thinks the minor has two penises, and has a penis and a vagina. She claims that the minor ate his own sperm. She claims she pulled the minors penis off. She claims the minor is dead. Either [A.V.] lacks the ability to perceive what is happening, or she lacks the ability to recollect what happened, or she lacks the ability to communicate about what happened. Or she lacks all three."

Once again, the capacity to perceive and recollect is a condition for the admissibility of a witnesss testimony on a certain matter rather than a prerequisite for the witnesss competency. (People v. Dennis (1998) 17 Cal.4th 468, 525.) The fact a witness has made inconsistent and exaggerated statements does not indicate an inability to perceive or recollect. (People v. Lewis, supra, 26 Cal.4th at p. 356.) Appellant insists the various claims of A.V. show a complete lack of competency "to observe and relate the events she supposedly witnessed." However, A.V. was capable of recollecting and recounting the facts she shared during her CART interview. She testified that appellant forced her to orally copulate him and to touch his penis. She further described behavior from which the court could reasonably conclude that appellant became sexually aroused and ejaculated. Even if the court could deem her other statements to be exaggerations, that does not indicate an inability to perceive or recollect under California law. (Ibid.)

In our view, the juvenile courts determination of competency was not arbitrary, capricious, or patently absurd under all of the circumstances. The trial court did not abuse its discretion in ruling A.V. was competent to testify.

II.

SUFFICIENCY OF THE EVIDENCE: COUNTS 1 AND 2

Speaking to counts 1 and 2, appellant contends this is the "rare case where the evidence is insufficient as a matter of law."

He specifically argues:

"[A.V.] thinks that cartoon characters are real. She thinks the minor has two penises, and has a penis and a vagina. She claims that the minor ate his own sperm and liked it. She claims she pulled the minors penis off. She claims the minor is dead. [A.V.] told the District Attorney interviewer, Laura, that a chair was a sailboat, that if you put the chair in water it would float and move around like a boat. [A.V.] told Laura that Laura had a spider on her head; this was obviously untrue.

"[A.V.] told the Public Defender investigator, Lisa, that others were present during the inappropriate touching, at one point saying everyone was present, her mother and cousins. [A.V.] claimed that Emilio once touched her inappropriately at the zoo, with others watching.

"Frankly, it is impossible to determine what, if anything, actually happened. [A.V.] is a four-year old child. Her grasp of reality, as is all too typical of such a young child, is tenuous at best. Her claims are absurd and impossible.

"The fact that [A.V.] described something that might resemble manual masturbation and climax is explained by the context of the household in which she lives. There was extensive testimony from others about the home where the minor and [A.V.] lived. The two adult women in the household bring boyfriends to spend the night. When [A.V.s] mother brings a boyfriend home, she moves the sleeping [A.V.] to the other bed in the same room. She has sex, and cannot be sure that [A.V.] does not hear. The family, with [A.V.] present, watches movies with sex scenes, including pornographic movies; [A.V.] is told to close her eyes during the sex scenes.

"Perhaps the most devastating testimony in the instant case came from [A.V.s] mother .... [Mother] does not know if [A.V.] always tells the truth and does not know if [A.V.] understands the difference between lying and the truth. [Mother] does not know if the crime at issue in the instant case happened; she has reservations about whether [A.V.] is telling the truth.

"Again, there is no corroboration of anything [A.V.] said. None of the people she said were present when the molestation occurred confirmed that accusation. There was no physical evidence supporting the claim of molestation. [A.V.] never told a consistent story, instead telling fantastic tales of being molested by a boy with two penises and a penis and a vagina, pulling off the boys penis, and that the boy ate his own sperm and liked it.

"No rational trier of fact could find the elements of counts one and two true beyond a reasonable doubt. This is that rare case where the evidence is so absurd that no rational trier of fact could find the claims true beyond a reasonable doubt. Reversal is thus required on this ground as well."

The May 24, 2007, first amended wardship petition charged appellant in count 1 with committing a lewd act upon a child by forcing the victim to lick his penis (Pen. Code, § 288, subd. (c)(1)) and in count 2 with committing a lewd act by forcing the victim to kiss his penis (Pen. Code, § 288, subd. (a)).

Penal Code section 288, subdivision (a), as charged in count 2, states in relevant part:

"Any person who willfully and lewdly commits any lewd or lascivious act ... upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony ...."

Penal Code section 288, subdivision (c)(1), as charged by statutory designation in count 1 states:

"Any person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense.... In determining whether the person is at least 10 years older than the child, the difference in age shall be measured from the birth date of the person to the birth date of the child."

We note at this point, however, that as will become pertinent in our later discussions, that Penal Code section 288a, subdivision (c)(1) provides:

"Any person who participates in an act of oral copulation with another person who is under 14 years of age and more than 10 years younger than he or she shall be punished by imprisonment in the state prison for three, six or eight years."

The standard of proof in juvenile wardship proceedings is the same as that required in adult criminal trials. In reviewing a challenge to the sufficiency of the evidence underlying a wardship adjudication, we consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision and not whether the evidence proves guilt beyond a reasonable doubt. The sole function of the reviewing court is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the adjudication. (In re Arcenio V. (2006) 141 Cal.App.4th 613, 615-616.)

In the instant case, A.V. testified on the stand and stated during her CART interview that appellant forced her to orally copulate him and to touch his penis. She also described physical behavior from which the trier of fact could conclude that appellant became aroused and ejaculated. Further, A.V.s mother admitted that A.V. had previously told her that appellant was molesting her. However, A.V.s mother did not take the statement seriously because A.V. was giggling at the time. The testimony of a single witness is sufficient to establish a disputed factual point. (People v. Cudjo (1993) 6 Cal.4th 585, 608.) Appellant nevertheless claims A.V.s overall story is "so inconsistent, so fantastic, and so absurd" to be unbelievable. He particularly notes that A.V. said she "pulled off" appellants "weenie" and that he had two penises. As respondent points out, A.V. could have been referring to appellants penis and testicles when she said he had two penises. She could have also described the post-ejaculation state of appellants penis when she said she "pulled off" his "weenie." In any event, her description of appellants sexual acts "showed a knowledge of such matters far beyond the ordinary familiarity of a child her age." (People v. Brodit (1998) 61 Cal.App.4th 1312, 1330.) Under California law it is the exclusive province of the trier of fact to determine the credibility of a witness and the truth or falsity of the historical facts. (In re Anthony C. (2006) 138 Cal.App.4th 1493, 1504.)

We conclude the trial courts findings of lewd and lascivious conduct underlying count 2 is supported by substantial evidence.⁸

8 Appellant also contends hearsay evidence alone is insufficient to satisfy the requirement of due process of law and mere uncorroborated hearsay does not constitute substantial evidence. (In re B.D. (2007) 156 Cal.App.4th 975, 983.) "Hearsay evidence" is evidence of a statement made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. (Evid. Code, § 1200, subd. (a).) Here, A.V. testified in juvenile court and was cross-examined by appellants trial counsel.

As will be more fully discussed in part VII, count 1 presents us with a more difficult situation resulting from the failure of the juvenile court to identify the specific Penal Code section which was found to have been proven true beyond a reasonable doubt. Several sections of the Penal Code come into play: Penal Code section 288, subdivision (c)(1), Penal Code section 288a, subdivision (c)(1), and Penal Code section 288, subdivision (a). Section 288, subdivision (c)(1), is the section set forth by statutory number in the wardship petition and the DJJ commitment order. Section 288a, subdivision (c)(1), is the section to which the original amendment and the factual charging pleading were directed. Further section 288, subdivision (a), lewd and lascivious acts, would umbrella the pleadings and evidence presented. With regard to these various sections we conclude first that if the courts intended finding was to a violation of section 288, subdivision (c)(1), it is unsupported by substantial evidence as the victim was not proved to be 14 or 15 years of age and dismissal of the count must result. If on the other hand the courts intended finding was to a violation of section 288a, subdivision (c)(1), then substantial evidence supports that finding as would a finding of a violation of section 288, subdivision (a). The ultimate effect to this circumstance and our conclusions with respect thereto are as previously noted, discussed and set forth in part VII.

III.

EVIDENCE OF APPELLANTS UNCHARGED SEXUAL CONDUCT

Appellant contends the juvenile court committed an abuse of discretion by admitting evidence of his uncharged sexual conduct with his brother.

Appellant explains the uncharged conduct in the following manner:

"The minor denied molesting his niece. During the prosecutors cross examination of the minor, the prosecutor asked about a prior incident involving the minor. The minors trial counsel objected to this impeachment, specifically citing Evidence Code section 352. The juvenile court overruled this objection and permitted the impeachment.

"The prior incident occurred when the minor was 14 years old. The minors mother found appellant and his 12-year old brother naked under a blanket. She called the police. In cross examination, the minor explained that he had consensual homosexual sex with his brother. [¶] ... [¶]

"The prosecutor impeached the minor with the prior incident involving consensual homosexual sodomy with his brother, two years younger. Defense counsel objected to this impeachment, specifically citing Evidence Code section 352, arguing that the prior incident was too prejudicial and insufficiently probative. The juvenile court abused its discretion in overruling that objection."

The following exchange occurred during the cross-examination of appellant:

"Q. [By Deputy District Attorney Tegnelia] Okay. And then you say theres a lot of bad behavior going on at the house; right, the language and stuff?

"A. Yes.

"Q. And how long has that been going on?

"A. Well, I would say probably since — well, I cant really say, like since I was like five or something `cause I really dont remember that far, but I would say since I was maybe in 5th grade, 6th grade.

"Q. So youve been exposed to a lot of this stuff, as well; right?

"A. Right.

"Q. And it never caused you to do anything inappropriate?

"A. Well, I guess not.

"Q. Okay. There was never an incident involving you and [appellants brother]?

"MS. STANLEY [deputy public defender]: Objection, your Honor. Im gonna indicate that this is a 352 objection, more prejudicial than probative and not relevant.

"THE COURT: ... Whats your offer of proof?

"MR. TEGNELIA: The offer of proof is that theres a prior incident in which the minor here engaged in sexual conduct with his then 11-year-old brother. [¶] Under 1108, it is admissible in the trial where sexual conduct is alleged, plus we have a denial here that anything inappropriate ever occurred. Its also used for impeachment.

"THE COURT: Counsel?

"MS. STANLEY: Your Honor, were still raising the objection under 352, and Im saying that this is far more prejudicial than probative. Were not making any distinction. This is a distinction between ... two minors two years apart in age, consensual act. It has no bearing on what is being alleged in this court today.

"MR. TEGNELIA: All of which is completely irrelevant as to 1108. The only thing that needs to be alleged is improper sexual conduct.

"THE COURT: The 352 objection is overruled, as well as other objections as stated."

Appellant contends evidence of the prior incident should have been excluded:

"... The current charges were that the minor forced his four-year old niece to manually masturbate him. The prior incident involved an act of consensual sodomy between the minor, then age 14, and his brother, who was two years younger. The only common element in these two events was that they both involved sex. ... The fact that both incidents involved sex is not sufficient to make the prior incident admissible; it is, instead, merely the prerequisite to potential admission.

"The prior incident was consensual. The current charge involved force. The prior incident involved homosexual sodomy. The current charge involved manual masturbation by a member of the opposite gender. The prior incident involved a person almost the same age of the minor. The current charge involved a person twelve years younger. Nothing about these incidents was at all similar. Thus, admission of this incident was an abuse of the courts discretion."

As a general rule, evidence of a defendants prior conduct is inadmissible when offered by the opposing party to prove the defendants conduct on a specific occasion, unless it involves the commission of a crime, civil wrong, or other act and is relevant to prove some fact (e.g., motive, intent, plan, identity) other than a disposition to commit such an act. (Evid. Code, § 1101, subds. (a), (b); People v. Falsetta (1999) 21 Cal.4th 903, 911.) In 1995 the Legislature enacted Evidence Code section 1108 (Stats. 1995, ch. 439, § 2), which expanded the admissibility of disposition or propensity evidence in sex offense cases. (Falsetta, supra, at p. 911.) Evidence Code section 1108, subdivision (a), provides:

"In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352."

Evidence Code section 1108 was intended, in the case of sex crimes, to sweep away the narrow categories of admissibility of other crimes evidence that had existed under Evidence Code section 1101. (People v. Britt (2002) 104 Cal.App.4th 500, 505.) Instead, such evidence is admissible, unless otherwise excluded by Evidence Code section 352, whenever it may be helpful to the trier of fact, on a common sense basis, for resolution of any issue in the case, including the probability or improbability that the defendant has been falsely accused. (See Britt, supra, at p. 506.) A trial court retains the discretion to admit or exclude evidence of another sexual offense under Evidence Code section 352. (People v. Rodriguez (1999) 20 Cal.4th 1, 9; People v. Callahan (1999) 74 Cal.App.4th 356, 367-368.) A trial courts exercise of its discretion under Evidence Code section 352 is reviewed for abuse of discretion and will not be disturbed on appeal absent a showing that the trial court exercised its discretion in an arbitrary, capricious or patently absurd manner. (Rodriguez, supra, at pp. 9-10.)

In People v. Harris (1998) 60 Cal.App.4th 727, the court set out five factors for evaluating the admissibility of prior offense evidence: the inflammatory nature of the evidence, the probability of confusion, the remoteness in time of the prior incidents, the consumption of time involved, and the probative value of the prior offense evidence. (Id. at pp. 737-741.)

In the instant case, these factors weighed in favor of admission of the evidence. As to the inflammatory nature of the evidence, appellants brief statement about the earlier consensual encounter was no stronger and far less inflammatory than A.V.s testimony concerning the charged offenses. As to the probability of confusion, the record reflects a clear demarcation between appellants consensual encounter with his brother and the charged offenses involving his underage niece. As to remoteness, the consensual conduct occurred a few years prior to the alleged offenses against A.V. Evidence of the consensual encounter consumed very little time during the jurisdictional hearing. Finally, the proffered evidence was relevant to show that appellant would engage in sexual conduct without regard to the legality of that conduct or the legal ability of the victim to consent. The evidence tended logically and by reasonable inference to prove the issue upon which it was offered was not merely cumulative. (See People v. Harris, supra, 60 Cal.App.4th at pp. 739-741.)

Appellant acknowledges another possible theory for admission of the prior incident was impeachment under People v. Wheeler (1992) 4 Cal.4th 284. He submits:

"In the instant case, it was an abuse of discretion to permit the minor to be impeached with the prior incident. It goes without saying that the prior incident was extremely prejudicial, even in a court trial. Sodomy with a 12-year old, even consensual sodomy, is very upsetting to many if not most people. The prejudicial impact was thus extreme.

"However, the probative value of this incident was minimal, and perhaps even nonexistent. One wonders what a prior act of consensual homosexual sodomy with a boy two years younger than the minor has to do with the minors credibility. The minor admitted the prior act. [¶] Thus, the probative value of the prior incident was nominal. However, the prejudice was extreme. Admission of the prior incident was thus an abuse of the juvenile courts discretion."

Evidence Code section 353 states:

"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless:

"(a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and

"(b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice."

A miscarriage of justice should be declared only when the court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable a result more favorable to the appealing party would have been reached absent the error. (People v. Rains (1999) 75 Cal.App.4th 1165, 1170.) Here, the juvenile court did not exercise its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. (People v. Callahan, supra, 74 Cal.App.4th at p. 367.) As respondent points out, appellant took advantage of a younger family member with whom he resided. The prior sexual conduct occurred only a few years prior to the instant case and appellant did not dispute the facts of the earlier incident. Although appellant insists the prior conduct was consensual, consent is irrelevant when determining lewd and lascivious conduct under Penal Code section 288. (People v. Hillhouse (2003) 109 Cal.App.4th 1612, 1619-1620.)

Given the graphic and fairly detailed testimony of A.V., the victim of the offenses charged in the instant case, it is not reasonably probable a result more favorable to the appealing party would have been reached had the prior offense evidence been excluded.

IV.

ABUSE OF DISCRETION: COMMITMENT TO DJJ

Appellant contends the juvenile court abused its discretion by committing him to DJJ.

He specifically argues:

"The minor has no prior history of criminal activity. Thus, this was his first offense. The juvenile court imposed the most severe punishment possible in the juvenile delinquency system, a commitment to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice. [¶] ... [¶]

"An adult convicted of child molestation could be sent to state prison purely for punishment. However, the theory of the juvenile delinquency system, with its denial of the right to a jury trial, is that the juvenile court is obliged to rehabilitate the minor. The commitment to DJJ is certainly punishment. However, it is not rehabilitative.

"The minor has no prior criminal history, as the juvenile court recognized. No suitable placement or community camp or any out-of-home placement has ever been tried on the minors behalf. The juvenile court merely asserted that a group home placement would not benefit society or protect society. There is simply no substantial basis for that claim.

"The juvenile courts claim that the minor is dangerous and poses a risk of violence to others is unsupported and unsupportable. Even if the preposterous claims made by [A.V.] are true, at most the minor had his niece masturbate him. Appellant does not minimize that crime, even though it was committed by a 16-year old. However, that conduct does not pose a danger of violence to others. It does not establish that the minor is dangerous. It cannot reasonably justify the ultimate sentence which can be imposed on a juvenile delinquent: DJJ. Thus, commitment of the minor to DJJ was an abuse of discretion."

In arriving at a disposition on July 18, 2007, the juvenile court stated in relevant part:

"I find that reasonable efforts have been made to prevent or eliminate the need for removal, and pending placement [appellant] is detained in the local juvenile facility.

"Ive considered the ... alternatives presented to the court. I have considered placing the child [appellant] back in the home. Ive already made findings that that is inappropriate.

"I have considered referring this back to Doctor Delahunt for further recommendations. I find that that is unnecessary and ... would not be helpful in this matter because I do not have a doubt as to what placement is appropriate, and I will address that.

"Ive considered placing the minor in a group home. In making that consideration — Ive considered his prior adjudicated history. His prior adjudicated history, there is none except for this offense; however, Ive considered his social history. Ive considered his family background. Ive considered the family background where theres extreme dysfunction of the family. Ive considered what has happened in the home. Ive considered what happened to his brother — between he and his brother. Ive considered the extreme predatory nature of the conduct brought before the court in this case. Ive considered the extreme disparity between the age of [appellant] and his four-year-old niece.

"Ive considered the extent of the criminal conduct. This was substantial sexual conduct as defined by law. There was also penetration. There was the — the victim reported pain when he penetrated her. He had no sympathy for that. There was oral copulation. There was touching. [Appellant] presents extreme danger to the community.

"I am not persuaded that a group home placement would benefit society and protect society. Thats one of the considerations that the court must take into account. Of course, Im required to take into account what is best for the minor.

"Here we have again a young man whos 17 years of age, and a group home environment is only available for two years, and the only type of group home available to him is placement in a group home with other young men like him ... that is an environment that is fraught with difficulties, shall we say. Also, its not the type of environment that secures safety ... for the community from predators like [appellant].

"It is the hope of the court that [appellant] is able to address his issues at the facilities available to him, and the programs available to him will deter him both in terms of what is actually punishment here. Thats ... a consideration. In the juvenile realm, its not the main consideration. Im not giving it undue weight, but a group home placement is simply not appropriate, and that leaves the court with whether or not to commit him to the Department of Corrections Division of Juvenile Justice. I find that that is the appropriate placement for this minor.

"... Im fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefitted by the reformatory educational discipline and other treatment provided by the Division of Juvenile Justice within the Department of Corrections and Rehabilitation."

The goals of the juvenile court are to protect the public and rehabilitate the minor. (In re Calvin S. (2007) 150 Cal.App.4th 443, 449.) Welfare and Institutions Code section 202 states in relevant part:

"(b) ... Minors under the jurisdiction of the juvenile court as a consequence of delinquent conduct shall, in conformity with the interests of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. This guidance may include punishment that is consistent with the rehabilitative objectives of this chapter.... [¶]...[¶]

"(d) Juvenile courts and other public agencies charged with enforcing, interpreting, and administering the juvenile court law shall consider the safety and protection of the public ... and the best interests of the minor in all deliberations pursuant to this chapter....

"(e) As used in this chapter, `punishment means the imposition of sanctions. ... Permissible sanctions may include any of the following: [¶]...[¶]

"(5) Commitment of the minor to the Division of Juvenile Facilities, Department of Corrections and Rehabilitation."

A decision of the juvenile court committing a minor to DJJ will not be reversed absent a clear showing that the trial court abused its discretion in selecting DJJ as the appropriate disposition. (In re George M. (1993) 14 Cal.App.4th 376, 379.) The record must demonstrate a probable benefit to the minor by DJJ commitment and the inappropriateness or ineffectiveness of less restrictive alternatives. However, a DJJ commitment may be considered without previous resort to less restrictive alternatives. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) The appellate court indulges in all reasonable inferences to support the courts decision. (In re Asean D. (1993) 14 Cal.App.4th 467, 473.) If there is substantial evidence to support the trial courts findings, those findings will not be disturbed on appeal. (In re James H. (1985) 165 Cal.App.3d 911, 922.) The 1984 amendments to the juvenile court law reflect an increased emphasis on punishment as a tool of rehabilitation and a concern for the safety of the public. (In re Asean D., supra, 14 Cal.App.4th at p. 473.)

In light of the foregoing standard of review, appellants claim of an abuse of discretion must be rejected. The court carefully considered less restrictive alternatives to DJJ placement but concluded they would not benefit appellant or society. The court expressly considered placing appellant back in his home. However, the court determined this would be inappropriate because his mother "failed to provide and is incapable of providing proper maintenance, training, [and] education" for him. The court cited "extreme dysfunction of the family" and pointed out the earlier sexual conduct between appellant and his brother. The court also considered a group home placement but concluded such a disposition would be inappropriate for appellant because it would only be available for two years, the home would be "fraught with difficulties," and such a disposition would not secure the safety of the community.

The report of the probation officer recommended a DJJ commitment because appellant required "24-hour supervision to address his issues and to eliminate any chance of the minor re-offending, and to insure that the safety and security of the community are maintained." In the view of the probation officer, a DJJ commitment would allow appellant to seek counseling to address his delinquent conduct. At the dispositional hearing, the court noted it had read a report by James Delahunt, Ph.D., a psychologist with the special case investigative unit of the Tulare County Health and Human Services Agency. Dr. Delahunt concluded appellant met the criteria for a "seriously emotionally disturbed" minor as set forth in Welfare and Institutions Code section 5600.3, subdivision (a). The court further held that appellant exhibited an "extreme predatory nature" and noted the disparity of age between appellant and the victim. The court deemed appellants sexual misconduct to be "substantial" and cited his penetration of the victim, acts of oral copulation, and touching. The court nevertheless observed that a commitment to DJJ would allow appellant to avail himself of programs and facilities to prevent re-offending.

The juvenile court read the report of the probation officer and the report of Dr. Delahunt, heard the extensive arguments of counsel, engaged in thoughtful interchanges with each counsel, and articulated a measured disposition citing the pertinent facts and circumstances of the case. The courts disposition satisfied the twin-goals of protecting the public and rehabilitating the appellant ward and no abuse of discretion occurred.

V.

SUBSTANTIAL EVIDENCE: COMMITMENT TO DJJ

Appellant contends there was no substantial evidence to support the required finding that a commitment to the DJJ would benefit the minor appellant.

Appellant specifically argues:

"The juvenile court heard the parties dispute the effectiveness of a DJJ sex treatment program; the court ended up excluding that program when it made its ruling. If the commitment of the minor to DJJ is not purely punitive, the commitment can be justified only if it can really be said that the minor will probably benefit from DJJ. There is no evidence that there is any program to address the problems presented by a minor who really did molest his niece. Moreover, there is no evidence that even if there is such a program, that the minor can get into the program or that the program would have any chance of benefitting the minor. In the instant case, there is no substantial evidence — in fact, no evidence at all — that a DJJ commitment will probably benefit the minor. Thus, the DJJ commitment must be reversed."

Welfare and Institutions Code section 734 states:

"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."

While a juvenile may not be committed to DJJ unless the court is satisfied that he or she will be benefited by the youth authority treatment and discipline, appropriate punishment for criminal conduct and protection of the public are major concerns of the juvenile court in selecting the appropriate disposition in a given case. (Welf. & Inst. Code, § 734; In re Calvin S., supra, 150 Cal.App.4th at p. 449.)

On July 18, 2007, the court conducted the contested dispositional hearing. The court read and considered the report of the probation officer. The court then heard the vigorous arguments of counsel. Defense counsel urged the court to place appellant in a group home and the district attorney recommended a commitment to the DJJ.

As noted above, after hearing the extensive arguments of counsel, the court stated in relevant part:

"... Im fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefitted by the reformatory educational discipline and other treatment provided by the Division of Juvenile Justice within the Department of Corrections and Rehabilitation."

On appeal, appellant contends the juvenile court recited the "words required by the statute" but "made no statement of findings justifying its assertion that the minor will benefit from the California Youth Authority [sic]." Appellant goes on to argue that "the recitation of words is not enough. Substantial evidence must support the conclusion being recited." By statutory mandate, the juvenile court must find a DJJ commitment to be a probable benefit to the minor. (Welf. & Inst. Code, § 734.) However, the specific reasons for such commitment need not be stated in the record. Rather, that determination must be supported by substantial evidence contained within the record. On appeal, we are required to examine the record to determine if there is evidentiary support for this specific statutory finding. (In re Robert D. (1979) 95 Cal.App.3d 767, 773.)

Welfare and Institutions Code section 706 states in relevant part:

"After finding that a minor is a person described in Section 601 or 602, the court shall hear evidence on the question of the proper disposition to be made of the minor. The court shall receive in evidence the social study of the minor made by the probation officer and any other relevant and material evidence that may be offered, including any written or oral statement offered by the victim, the parent or guardian of the victim if the victim is a minor .... In any judgment and order of disposition, the court shall state that the social study made by the probation officer has been read and that the social study and any statement has been considered by the court."

Here, the report of the probation officer filed July 13, 2007, noted in pertinent part:

"Seventeen year old [appellant] is making his first formal appearance before the Courts in regard to two Felony, Lewd Acts With a Child and a Felony, Vandalism Over $400 Damages. In regard to count one and two, it was found true that the minor commi[tt]ed Lewd Acts with a Child. The victim of the case reported the minor forced her to oral[ly] copulate him and have sexual intercourse with him on several occasions. In regard to count six, the minor was found to have committed a Felony, Vandalism Over $ 400 Damage. The minor admitted to entering the victims residence, where he and the co-participant played with a fire extinguisher. However, the minor denied ever lighting a fire in the residence or causing damages to the residence.

"The Probation Department is concerned with the minors participation in and direction of cruel and heinous behaviors involving a four-year-old victim which demonstrates a disregard for the safety of the victim, as well as society. The minor took advantage of a position of trust, as the victim was his four-year-old niece. Furthermore, the victim reported the minor forced her to oral[ly] copulate him and have sex with him on several occasions. The minor also used violence on the victim as she reported the minor had hit her on the top of her head if she squeezed his penis. Furthermore, the minor showed no empathy to the victim as she reported the minor would cause her pain, as he would have sexual intercourse with her. Due to this, the Probation Department feels strongly that the minor is a danger to the community and is in need of a secured environment, while he participates in a sex offender treatment program.

"Regarding dispositional alternatives, recommending the minor be committed to the Long Term Program, the Tulare County Youth Facility or the Short Term Program were not considered, as it is felt the minor is a danger to himself and society and requires a long term placement to address his issues. Recommending the minor be placed in a Group Home/Foster Home/home of Suitable Relative or on Formal Probation to reside in the home of his mother was considered, however, it appears the minor is in need of 24-hour supervision to address his issues and to eliminate any chance of the minor re-offending, and to insure that the safety and security of the community are maintained.

"It appears the appropriate recommendation would be to commit the minor to the Department of Corrections and Rehabilitation, Division of Juvenile Justice. This recommendation would allow the minor to seek counseling to address his delinquent behavior and actions. Furthermore, the safety of the minor and his victim would be addressed by having the minor under 24-hour supervision."

From the foregoing report, the juvenile court could reasonably conclude that commitment to the DJJ would allow appellant to avail himself of facilities and programs to prevent re-offending. Moreover, the probation officer specifically noted that commitment to the DJJ would meet appellants need for 24-hour supervision, address his issues, eliminate the chance of his re-offending, and insure maintenance of the safety and security of the community. Appellant insists: "There is no evidence that there is any program to address the problems presented by a minor who really did molest his niece." California courts have long held that the juvenile courts judicial power is exercised in determining whether the ward should be committed to the DJJ if qualified and acceptable. The Legislature has properly delegated to the DJJ the discretion to determine whether its facilities will be or are of benefit to the ward. (Breed v. Superior Court (1976) 63 Cal.App.3d 773, 785.) Appellants challenge as to the availability of specific programs must be rejected.

The report of the probation officer supplied substantial evidence to support the finding required by Welfare and Institutions Code section 734.

VI.

AMENDMENT OF COMMITMENT ORDER

The respondent submits an augmented commitment order should be prepared to reflect the oral pronouncement of the court.

Respondent properly

"At the dispositional hearing, the juvenile court denied probation and sentenced appellant to a maximum term not to exceed seven years eight months. The commitment order incorrectly reflects the maximum term of confinement as 9 years 8 months. In light of this apparent clerical error, the commitment order should be corrected to correspond to the juvenile courts oral pronouncement. (See People v. Mitchell (2001) 26 Cal.4th 181, 187-188 [if an evident discrepancy between the juvenile courts pronouncement of judgment and the abstract of judgment is brought to the attention of the Court of Appeals, `the appellate court itself should order the trial court to correct the abstract of judgment.])"

Because we direct a new dispositional hearing be held and a corrected commitment order be prepared and filed we leave it to the juvenile court to make such corrections as may be appropriate.

VII.

DISCREPANCIES AS TO COUNT 1

We proceed now to a discussion of certain discrepancies which we find the record reveals involving the pleadings, adjudication, disposition and reporting of matters pertaining to count 1.

A. Pleading

On March 28, 2008, this court transmitted a letter to the parties noting (1) count 1 of the amended wardship petition, which was adjudicated to be true, charged appellant with a violation of Penal Code section 288, subdivision (c)(1), and (2) one of the elements of a violation of that statutory provision is that the victim be a "child of 14 or 15 years." We asked the parties to submit letter briefs addressing two questions: "What, if any, effect does the fact that the victim in this case is 4 years of age have upon the validity of the adjudication? Would this constitute an evidentiary deficiency as contended in other respects in appellants opening brief?" On April 7 and 9, 2008, the parties submitted supplemental letter briefs responding to these questions. We have determined that resolution of the questions will entail a careful examination of the procedural history of the case in the juvenile court.

The record contains two separate amendments to the wardship petition. The first amendment took place during an April 17, 2007, pretrial hearing. The record on appeal does not include a reporters transcript for that hearing. However, a minute order for the hearing includes a handwritten annotation stating in relevant part:

"Petition orally amended to PC288(a)(c)(1) due to clerical error on orig document."

The minute order does not identify the specific count as to which the amendment applies. The original wardship petition, filed April 3, 2007, does not reflect an amendment by interlineation to count 1, which charged a violation of Penal Code section 288, subdivision (c)(1) and alleged that appellant "MADE A.V. LICK HIS PENIS." However, count 4 of the original petition charged a violation of Penal Code section 288, subdivision (a) and alleged that appellant "PUT HIS PENIS IN THE VICTIMS VAGINA." Count 4 reflected an amendment by interlineation to read "Penal Code section 288(a)(c)(1)." The face of the clerks transcript does not indicate who made the interlineation to count 4 or when it was made.

On May 24, 2007, the district attorney filed a first amended petition in juvenile court. Count 1 again charged a violation of Penal Code section 288, subdivision (c)(1) and alleged inter alia appellant "MADE A.V. LICK HIS PENIS." Count 4 again charged a violation of Penal Code section 288, subdivision (a) and alleged appellant "PUT HIS FINGERS INSIDE A.V.S VAGINA." At the May 29, 2007, jurisdictional hearing, Deputy District Attorney Tegnelia stated:

"When the ... petition was amended on ... Wednesday ... there was a clerical error, and the alleged conduct in Count 4 is different than what was originally alleged in the new petition, that is.

"The court can see on the amended petition, the alleged conduct is to wit, put his ... fingers inside the victim, whereas in the original Count 4, it was when he put his penis inside the victims vagina. The new petition needs to be amended to allege ... the original conduct."

Deputy Public Defender Stanley did not object to the proposed amendment and the court stated, "I will amend by interlineation ...." The word penis was substituted for fingers.

No one at the May 29 jurisdictional hearing made reference to the oral amendment of April 17 or addressed whether the first amended petition did or did not conform to that oral amendment. In its supplemental letter brief, respondent concedes the first amended wardship petition "still incorrectly cited section 288, subdivision (c)(1)." Respondent also concedes "there is insufficient evidence to uphold a conviction under section 288, subdivision (c)(1), since the victim was not 14-or-15 years old."

However, respondent maintains appellant had adequate notice that the charged offense was Penal Code section 288a, subdivision (c)(1) to create a proper defense strategy with respect to the factual underpinnings of count 1 because: (1) the trial court previously granted the oral amendment to correct the clerical error in the original petition; (2) the first amended petition was filed to add two new counts against appellant and not to clarify previous clerical errors; (3) the prosecution requested the court to correct another clerical error in the amended information so that it reflected the accusations of the original amendment; and (4) evidence was presented at the jurisdictional hearing, and defended against, that appellant had the victim touch, lick, and kiss his sexual organ. Respondent concludes the clerical defect in the code section set forth in the amended petition did not hinder appellants defense strategy and, thus, no prejudice arose.

The oral amendment referenced in the clerks transcript on April 17, 2007 cited to "PC288(a)(c)(1)." Penal Code section 288 sets forth criminal offenses involving lewd and lascivious acts. The statute includes a subdivision (a) and a subdivision (c)(1) but no such subdivision as "(a)(c)(1)." Penal Code section 288a sets forth the criminal offense of oral copulation. As previously set forth, section 288a, subdivision (c)(1) states:

"Any person who participates in an act of oral copulation with another person who is under 14 years of age and more than 10 years younger than he or she shall be punished by imprisonment in the state prison for three, six, or eight years."

Oral copulation is the act of copulating the mouth of one person with the sexual organ of another person. (Pen. Code, § 288a, subd. (a).) California courts have long recognized that section 288a proscribes unlawful oral-genital contact. The term "sexual organ" includes a mans scrotum as well as his penis. The gravamen of the offense is the revulsion and harm suffered by one who is forced to unwillingly touch his or her mouth to the genitals of another. (People v. Catelli (1991) 227 Cal.App.3d 1434, 1450-1451.) A defendant who forces another to lick his sexual organ engages in lewd and lascivious conduct under Penal Code section 288, whether or not that act constitutes oral copulation under section 288a. (People v. Catelli, supra, at pp. 1447-1448.)

The first amended wardship petition alleged only two counts entailing oral-genital contact between appellant and his victim. Count 1 of the first amended petition, charging a violation of section "288(c)(1)," alleged appellant made A.V. lick his penis and that appellant was at least 10 years older than A.V. Count 2 of the first amended petition, charging a violation of section 288, subdivision (a), lewd and lascivious conduct, alleged appellant made A.V. kiss his penis and that A.V. was a child under the age of 14 years. The conduct underlying each of these counts could have been characterized as lewd and lascivious or as oral copulation. Neither the clerks transcript nor the juvenile court file specifically identifies the count to which the oral amendment of April 17, 2007, pertains. Nevertheless, from the phrasing of the allegations, we can reasonably conclude that the oral amendment of April 17, 2007—to state a violation of Penal Code section 288a, subdivision (c)(1)—referred to count 1 (which included an allegation about the 10-year age disparity between appellant and A.V.) rather than count 2 (which simply alleged A.V. was under the age of 14 years).

In dealing with adults charged with criminal offenses, California courts have held the purpose of an accusatory pleading is to provide the accused with reasonable notice of the charges. Defects in the form of an accusatory pleading are not a ground to reverse a criminal judgment in the absence of significant prejudice to the defendant. Moreover, a criminal judgment may be premised upon an information that has been orally amended. (People v. Sandoval (2006) 140 Cal.App.4th 111, 132.) Due process requires that a minor, like an adult, have adequate notice of the charge so that he or she may intelligently prepare a defense. (In re Arthur N. (1976) 16 Cal.3d 226, 233.) Under Welfare and Institutions Code section 348, the basic rules of amendment set forth in the Code of Civil Procedure at sections 469 through 475 apply to petitions and proceedings under the juvenile court law. (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1041.) Code of Civil Procedure section 469, in particular, states in relevant part:

"No variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits...."

In the instant case, respondent correctly observes that the facts in the first amended petition notified appellant "the allegation in count [1] surrounded whether he made the victim `lick his penis." As respondent points out, the victim, A.V., was the only witness to testify as to these facts and the bulk of the defense case was devoted to an examination of whether A.V. was competent and credible to testify as a witness in the wardship proceeding. Moreover, appellants trial strategy was "to discredit the testimony of the victim to create reasonable doubt." Further, the court stated it found the specific allegations of counts 1 and 2 to be true stating: "... I found Counts 1 and 2 to be true. There are specific allegations in the charged offense as to the nature of the conduct. I found — I found the petition to be true." This would constitute a finding of licking of the penis which would constitute a violation of Penal Code section 288a, subdivision (c)(1). In view of these facts and circumstances, we cannot say the apparently incorrect statutory citation in count 1 "actually misled the adverse party [appellant] to his prejudice in maintaining his ... defense upon the merits." (Code Civ. Proc., § 469.) Therefore, reversal of the adjudication on count 1 is not on that basis required. The correct adjudication may be a finding of a violation of Penal Code section 288a, subdivision (c)(1) (or for that matter Penal Code section 288, subdivision (a)).

B. Commitment to DJJ

Resolution of the pleading problem does not conclude our discussion, as adjudication of the first amended information raises questions at the dispositional phase of the proceeding.

On July 13, 2007, the Deputy Probation Officer Mike Santos filed a report with the juvenile court. The probation officer noted a maximum possible commitment term of nine years four months, less 117 days of credit for time served. The probation officer broke down that total term and noted in pertinent part:

COUNT OFFENSE MISD/FEL 707(d)TERM TERM IMPOSED 1 288(c)(1) PC Fel X 1,2,3 years 8 months [¶] ... [¶] 2 288(c)(1) PC Fel X 3,6,8 years 8 years [¶] ... [¶] 3 594(a) PC Fel 16 mos, 2, 8 months 3 years

At the time Officer Santos prepared his report, Penal Code section 288, subdivision (a)—the offense charged in count 2 of the original and first amended wardship petition lewd and lascivious conduct—provided for punishment of three, six, or eight years. Penal Code section 288, subdivision (c)(1), lewd and lascivious conduct with a 14 or 15 year old—the offense statutorily charged in count 1 of the unamended original and first amended wardship petition—provided for punishment of one, two, or three years. Penal Code section 288a, subdivision (c)(1)—the offense identified in the oral amendment of April 17, 2007, and factually pleaded—provided for punishment of three, six, or eight years.

On July 18, 2007, the court conducted a dispositional hearing. Early in the proceeding, appellants counsel suggested that Cunningham v. California (2007) 549 U.S. ___ precluded the court from imposing any term greater than the midterm and the following exchange occurred:

"MS. STANLEY [deputy public defender]: Well, I submit as the maximum term on the 288(a) charge would be the midterm, and then I

"THE COURT: I thought these were 288(c)s, three, six, eight. Midterm would be six.

"MS. STANLEY: Yes. Im sorry, 288(c), excuse me.

"THE COURT: And then the (c) would be plus one.

"MS. STANLEY: Right.

"THE COURT: And then the 594 — well, thats — thats a felony, as well.

"MS. STANLEY: Yes.

"THE COURT: So that would be — so it looks to me like under Cunningham, the maximum without the special findings which there arent any, would be seven, eight."

After hearing from both counsel, the court removed appellant from the physical custody of his parents, committed him to the DJJ, and awarded 117 days of credits for time spent in juvenile hall awaiting disposition.

On July 19, 2007, the court filed an order committing appellant to the DJJ. Without tying specific Penal Code sections to specific counts, the court imposed a term of eight months on one count of Penal Code section 288, subdivision (c)(1), a term of eight years on a second count of Penal Code section 288, subdivision (c)(1), and a term of eight months on a count of Penal Code section 594, subdivision (a). The commitment order noted a maximum term of confinement of nine years four months.

On August 23, 2007, the DJJ wrote the Honorable Gerald F. Sevier, the committing juvenile court judge. The DJJ informed the court: (1) it was accepting appellants case; (2) Penal Code section 288, subdivisions (a) and (c) were not encompassed within Welfare and Institutions Code section 707, subdivision (b) and should not be so designated; and (3) one of the Penal Code section 288, subdivision (c) offenses listed in the commitment order should be designated as a Penal Code section 288, subdivision (a) offense, based on the "the attached petitions and the base term of 8 years."⁹

9 In order to assist in our review of this matter this court on its own motion has obtained, examined and referred to the superior court file from the County of Tulare. Judicial notice may be taken from the records of any court of this state. (Evid. Code §§ 452, subd. (d)(1), 459, subd (a).)

On November 21, 2007, the court filed a new commitment order again listing two felony offenses under Penal Code section 288, subdivision (c)(1) and imposing a term of eight months under one such count and a term of eight years under the other such count. The court also imposed a term of eight months under Penal Code section 594. The court again set the maximum period of confinement at nine years four months. That same day, the court filed an amended commitment order. This time, the court listed one felony offense under Penal Code section 288, subdivision (c)(1) with an eight-month term of confinement, another felony offense under Penal Code section 288, subdivision (a) with an eight-year term of confinement, and a third felony offense under Penal Code section 594, subdivision (a) with an eight-month term of confinement. The court again set the maximum period of confinement at nine years four months.

Neither the record on appeal nor the superior court file sets forth the precise method of calculation for the terms imposed. Nevertheless, it appears the total term of confinement is in error. By consistently imposing a term of eight months on count 1, the juvenile court was presumably seeking to impose one-third of the middle term of confinement prescribed by the offense charged by statutory designation, Penal Code section 288, subdivision (c)(1), a charge we have found is not supported by substantial evidence. However, as we have noted above, this charge was allegedly amended on April 17, 2007, to set forth a violation of Penal Code section 288a, subdivision (c)(1). Oral copulation alleged under that statute carries a term of confinement of three, six, or eight years. One-third of the middle term prescribed by Penal Code section 288a, subdivision (c)(1) is two years, not eight months.

Count 2 of the first amended wardship provision alleged a violation of Penal Code section 288, subdivision (a), which carries a term of confinement of three, six, or eight years. By consistently imposing a term of eight years on count 2, the juvenile court was presumably seeking to impose the upper term of confinement prescribed by the charged offense, Penal Code section 288, subdivision (a). The court and the prosecutor had the following exchange at the dispositional hearing:

"MR. TEGNELIA [deputy district attorney]: ... Im just saying the maximum possible term would be nine years, four months. Im not saying thats what would be imposed, but here in juvenile we just calculate the max term and then go on. Im not saying you have to impose it. Im just saying you could if you wanted to.

"THE COURT: Well, I dont see how I could unless I made findings that the aggravated term was the appropriate term.

"MR. TEGNELIA: Right.

"THE COURT: I would have to base that determination on findings. Id have to weigh the aggravating and mitigating, wouldnt I?

"MR. TEGNELIA: Yes, you would. Im just saying the court has ability to do that since youre the finder of fact, as well."

The juvenile court ultimately found:

"I find that the maximum time that [Emilio C.] can be confined ... in secured custody for the offenses sustained in this petition is seven years, eight months. ... Im not going to call him a child, hes 17 years of age. In law, hes a child, but hes close to being a man. The maximum time Emilio [C.] can be confined in a secured facility is seven years, eight months."

With respect to adult criminal defendants, an unauthorized sentence is subject to judicial correction whenever error comes to attention of reviewing court. (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.) A sentence is unauthorized only if it could not lawfully be imposed under any circumstance in the particular case. Such an error is reviewable on appeal in the first instance only because it is independent of any factual issues presented by the record at sentencing. (People v. Scott (1994) 9 Cal.4th 331, 354.) In the instant case, even with the corrections set forth in the amended commitment order of November 21, 2007, the commitment appears to be unauthorized because the term of confinement on count 1 does not seem to correspond with the punishment prescribed by Penal Code section 288a, subdivision (c)(1), the offense alleged in the oral amendment of April 17, 2007, and factually alleged and proven. Moreover, we cannot ascertain from the record on appeal whether Deputy Probation Officer Santos was cognizant of the amended count at the time he prepared his disposition report or whether Judge Sevier factored the oral amendment into his commitment calculations at the time he conducted the dispositional hearing.

Further, there appears to be a discrepancy between the seven years four months maximum confinement term stated by the court and the nine years four months set forth in the commitment orders.

In view of these facts and circumstances, we must remand the matter to the juvenile court for a supplemental dispositional hearing as to the terms imposed on counts 1 and 2 with direction to the court to reconsider the terms imposed on each such count and to set forth with specificity as to each count the Penal Code offense and count to which it attaches.

In summary we will affirm the jurisdictional findings as to count 2, the jurisdictional and dispositional findings as to count 6, and the commitment to DJJ. As to count 1 the jurisdictional finding of violation of Penal Code section 288, subdivision (c)(1) is vacated and the matter is remanded to the juvenile court for reconsideration consistent with the views expressed herein of the offense adjudicated true. If, however, the court upon reconsideration shall maintain its apparent previous indication that the offense adjudicated is a violation of Penal Code section 288, subdivision (c)(1) then it shall dismiss that count for insufficient evidence. In any case the court shall specify by numerical statutory designation the specific offense adjudicated true. The court shall thereupon reconsider its disposition and specified terms for each of counts 1 and 2 as well as the maximum commitment term imposed.

DISPOSITION

The jurisdictional and dispositional findings and orders as they pertain to count 6 are affirmed.

The jurisdictional findings as they pertain to count 2 are affirmed.

The jurisdictional findings as they pertain to count 1 are vacated and the matter is remanded to the juvenile court for reconsideration thereof in accordance with the views expressed herein.

The commitment of the minor appellant to DJJ is affirmed.

The dispositional findings and orders as they pertain to counts 1 and 2 are vacated and as to the terms imposed thereon remanded for reconsideration in accordance with the views expressed herein.

Upon completion of the reconsideration and actions hereby directed the juvenile court shall amend its records as may be appropriate and prepare, file and serve a new corrected order of commitment.

We concur:

WISEMAN, J.

GOMES, J.