In re BRIAN J.,

Filed 4/24/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Richard A. Erwood, Judge. Affirmed.

Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Garrett Beaumont, Deputy Attorney General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant Brian J. appeals from the two-year extension of his commitment to the California Youth Authority (CYA)^[1]under Welfare and Institutions Code^[2]section 1800 et seq., the juvenile Extended Detention Act (EDA). First, he contends the EDA deprived him of equal protection of the law by treating him differently from similarly situated adult prisoners who are subject to civil commitments under the Sexually Violent Predators Act (SVPA) ( 6600 et seq.) and the mentally disordered offender (MDO) laws (Pen. Code,  2960 et seq.). Second, he contends the order extending his commitment is unconstitutional because it is penal in nature, violates substantive due process, and results in cruel and unusual punishment. Third, he contends there is insufficient evidence that his mental disorder causes him serious difficulty in controlling his dangerous behavior or that any risk of reoffense is a result of a mental disorder. Finally, he contends the order must be reversed because of prejudicial misconduct of the prosecutor in argument to the jury. We find that any errors were nonprejudicial, and we affirm.

II. FACTS AND PROCEDURAL BACKGROUND

A. Original Commitment

Defendants original commitment to the CYA began on March 13, 1997, when he was 14 years old. In the commitment offense, he lured the eight-year-old victim into a motor home by offering to show him some magazines.  Defendant pushed the victim down, bound his hands and feet together, took his clothes off, and put duct tape across his eyes and mouth.  Defendant pressed a knife against the victims back and threatened to cut him if he did not shut up.  Holding the victim down, defendant put his penis in the victims mouth and urinated.  He whipped the victim with a belt and a piece of wood and punched him twice in the stomach.  The victim begged him to stop, and eventually defendant cut him loose and let him leave. Defendant had himself been molested in similar fashion by an uncle from ages five through 13.

B. Section 1800 Petition

On December 10, 2004, the Riverside County District Attorney filed a petition under section 1800 to extend defendants CYA commitment, which was to expire on January 31, 2005. The petition was based on a letter from the Youthful Offender Parole Board and on defendants CYA master file, both of which were attached to the petition. The trial court conducted a hearing and found probable cause to believe defendant was likely to be physically dangerous to the public due to his mental or physical deficiency, disorder or abnormality.

C. Evidence at Defendants Jury Trial

From April 1997 through March 1999, defendant was assigned to the caseload of Youth Correctional Counselor (YCC) Katherine Harris of the Marshall Unit at the CYA Reception Center in Norwalk.  The Marshall Unit has an intensive treatment program for wards with psychological problems.  While there, defendant participated in groups and counseling sessions for trauma recovery, anger management, sex offenders, and victim awareness.

Harris prepared a report about defendants first year in CYA, in which she described his behavior as out of control.  Defendant made rude comments to his peers, wrote them sexual letters or notes, touched their genitals without their permission, and threatened to fight them.  He was diagnosed as being a serious pedophile.  Harris testified that defendant was found in possession of pornographic photographs of children, and he admitted masturbating to the photographs. Staff had reported that defendant had yelled obscenities at visiting children while masturbating through the visitors window, so he had to be moved to another side of the unit where he could not see the children.

The second annual report noted that defendant was acting out sexually by touching other wards inappropriately and writing an inappropriate sexual letter. Harris described his behavior during his second year at CYA as [v]iolent, out of control, highly sexual, acting out and really kind of dangerous. . . . [A]lways having to watch him. During group sessions, defendant was an agitator, and he laughed when other wards talked about their victims. Harris testified that defendant had the ability [t]o some degree to control his behavior if he wanted to. Defendant showed some improvement when he applied himself. For a month or two, defendant did control his behavior sufficiently that he was moved to a higher phase and received more privileges, but he had difficulty controlling his behavior, and he regressed.

Harris testified that normally, wards had a single counselor assigned to them, but defendant was assigned two counselors and a therapist because of his severe behavioral issues. Defendant met with his counselor at least one hour per week and with his therapist twice a week. He also had recovery group, trauma group, and victim group sessions once each per week. His progress was poor because he was resistant to treatment and disruptive during his group sessions. He did not openly discuss his commitment offense, and he showed no empathy for his victim.

From March through December 1999, defendant was in a specialized counseling program for sex offenders at Oak Lodge.  Dr. Peter Shumsky, a clinical psychologist for the CYA, conducted a psychological evaluation of defendant, who was being considered for a transfer because he had been in the program for nine months but had not made any progress.  Dr. Shumsky reviewed prior evaluations and defendants file and interviewed defendant. In addition, defendant had attended Dr. Shumskys group sessions for four hours per week for several months.

Dr. Shumsky noted that defendant had poor impulse control and acted out with physical and verbal aggression. He continued to present an extremely elevated danger towards young children of both sexes. Defendant masturbated daily to sexual fantasies of children, and he had developed a sexually deviant arousal problem with a primary orientation toward children.  Defendant had poor social skills, and he was uncomfortable with and fearful of adult men because of his history of abuse.  Dr. Shumsky diagnosed defendant with attention deficit hyperactivity disorder (ADHD), predominantly hyperactive impulsive type; conduct disorder, childhood onset type, moderately severe; pedophilia, nonexclusive type; and sexual abuse of a child. Dr. Shumsky stated his opinion that defendants addiction to masturbating to images of children would cause serious difficulty in controlling [his] behavior.

A transfer summary dated December 22, 1999, prepared by YCC Janice Carter, stated that defendant had no empathy for his victim, and he continued to change his story about what he had actually done to the victim.  Defendant admitted having continuing sexual fantasies about young boys and admitted that for at least a year, he had masturbated twice daily to those fantasies.

In 2000, defendant was assigned to the caseload of YCC Tom Casillas at O. H. Close Youth Correctional Facility (Close) in Stockton. Casillas prepared an annual review and transfer summary for defendant in January 2001. Defendants treatment team felt defendant needed to be transferred because he was not meeting his goals or treatment needs. In group sessions, defendant never showed any empathy toward his victim or remorse for his offense. His performance in the sex offender group was poor because of lack of participation. Defendant and another ward were reported to have engaged in sexual activity in a classroom, although defendant denied doing so. Defendant told Casillas that he had planned his committing offense for about two months.

In March 2001, defendant was assigned to a specialized counseling program for emotionally disturbed wards at N. A. Chaderjian Youth Correctional Facility (Chaderjian); the majority of wards in the program are sex offenders.  Defendant was first assigned to the caseload of YCC Esiquio Chico Gutierrez at Chaderjian.  Gutierrez prepared an annual review dated April 15, 2002, which indicated defendant was not accepting full responsibility for his offense and did not want to discuss treatment issues related to his offense.  Defendant got into verbal conflicts with other wards, disrespected other wards, and came close to getting into physical altercations with them.  He sometimes was disruptive by [s]houting profanities. And then just shouting, being angry, standing up, shouting you know towards other wards and Gutierrez. He [r]eacted very quickly without even thinking of the consequences. Defendants progress in group was mediocre because he would get upset and frustrated and would refuse to talk, and he failed to complete his homework assignments. Between April 2001 and April 2002, defendant participated in rational behavior therapy, anger management, parenting, victim awareness, [and] self-esteem . . . [along with] assertion group, process, individual counseling, small group counseling, sex offender counseling.

Defendant was assigned to the caseload of YCC Martin Jimenez from 2002 through July 2003 in the specialized counseling program at Chaderjian.  In March 2003, Jimenez prepared an annual review/transfer report stating that defendant did not express any empathy for the victim or remorse for what he had done to the victim.  His progress in the program had been minimal.  He still engaged in inappropriate behavior in his living unit.  Jimenez described an incident in which, in May 2002, a cook noticed defendant in the dining room with an art class.  Defendant spoke to the cook in the kitchen.  A few minutes later, defendant went to the cooks office and engaged in small talk, then tried to close the door.  The cook yelled at him to open the door.  Defendant did so and walked out.  The look in his eyes made the cook fearful.  Other wards had reported that defendant had stared at the cook in the dining hall for a long period of time.  Defendant admitted to Jimenez that he had planned to rape the cook. On another occasion, defendant masturbated another ward in the recreation yard.

Jimenez prepared chronological notes in early 2003 concerning defendant. The notes indicated defendant continued to lack progress in his treatment, and he still posed a danger to the public.  Defendant had sadistic fantasies and urges, and he stated he got pleasure from beating other people.  He admitted fantasizing about his commitment offense. Jimenez prepared a transfer summary in May 2003. Defendant had been in the counseling program at Chaderjian for almost two years, but had not made any significant progress, and his treatment team felt that a new environment might give him a new start. At a case conference in May 2003 with his treatment team, defendant yelled profanities, refused to sit down, and had to be removed to his room where he continued yelling. In another incident, defendant tried to make a hole in the wall of his room so he could commit a sexual act with the ward in the adjacent room.

Dr. Sophia Johnson was a staff psychologist at Chaderjian.  Defendant participated in a sex offender group treatment program that she led in 2002; the group met weekly for two to two and one-half hours. Defendant was usually quiet in group and did not participate much. In November 2002, Dr. Johnson wrote a behavior report on defendant after he walked out of the group when she confronted him and told him he needed to talk about his offense. During the discussion, she told defendant he risked a section 1800 petition unless he participated in treatment. Dr. Johnson recommended that defendant be tracked for section 1800 proceedings because he hadnt ventured into treatment or he was not motivated, because of his level of aggression and anger and inability to control it, and because of his ongoing sexual acting out during his incarceration. When Dr. Johnson wrote the report, she believed defendant was a danger to the community. She recommended defendant be transferred to another sex offender program to allow him a new start.

In Dr. Johnsons opinion, defendant demonstrated progress when he told Jimenez in January 2003, that he was still a danger to the public.  She believed defendants honesty with his counselor about his fantasies regarding the commitment offense was also a step in the right direction.

During a group session in February 2003, defendant admitted sexually assaulting other children in the same manner as his commitment offense.  In Dr. Johnsons opinion, defendant was dangerously sadistic and fascinated with hurting others.

On April 1, 2003, Dr. Johnson prepared a note stating that defendant was able to talk about his commitment offense, but he did not know what his motivations had been, and he could not express his feelings about what he had done.  Dr. Johnson described defendant as having a fragile ego defended by anger and sadistic rage.

Defendant was transferred to Heman G. Stark Training School (Stark) in Chino in August 2003, where he was assigned to the caseload of YCC Osei Yaw.  Defendant attended a weekly impulse control group, during which he showed difficulty sitting still and taking orders from staff. Defendant exhibited similar behavior and failed to participate in his sex offender group.

In Yaws view, defendant is still a danger because he is attracted to children, and he has very little impulse control in his urges. Defendant admitted stalking other wards and fantasizing about having sex with them. He had very little control when he became angry and he disrespected and used racial slurs against other wards, which put his life in danger. Although defendant had been taught intervention tools, Yaw saw no evidence that he ever used them.

Defendant admitted to Yaw that he had molested three victims, and he admitted that he had intended to rape the cook in the incident at Chaderjian. He admitted he enjoyed tying up his victims.  Defendant stated he believes he is a pedophile.  He stated that he could be triggered into again molesting children by being in the company of children, using pornography, and having deviant sexual fantasies.  He was still sexually acting out in his living unit, was writing inappropriate notes, and was stalking a couple of the other wards. Defendant admitted he had planned the commitment offense for months and had lured the victim into his fathers motor home.

Defendant wrote out case work assignments in which he stated that before his offense, he had sexual fantasies and was looking for someone with a small penis and buttocks.  He fantasized about having the victims orally copulate him while he was hitting them.  Some of his fantasies included spanking.  He wrote about his offense, but he was never able to discuss it in therapy.

Dr. Laura Poncin, a psychologist, was part of defendants treatment team at Stark in 2003 and 2004, and defendant attended her weekly therapy group for child molesters for about eight months. Defendant admitted he was a sexual sadist and had had an erection when he was beating the victim.  He admitted molesting other victims.  He admitted he had wasted seven years of his treatment. In Dr. Poncins opinion, defendants admission that he was a sadist was a huge step in his treatment. In the beginning stages of treatment with Dr. Poncin, defendant seemed like he was going to be able to apply himself, but he then started going downhill by refusing to attend group sessions, getting into a fight with another ward, and being verbally disrespectful of other wards. He was transferred to another facility in April or May 2004 because there was concern his safety might be in jeopardy from other wards who were angry with him.

Dr. Poncin stated that defendant was able to control himself while in her group and at times in his living unit, although at other times he was not in control of himself. That behavior told her he had the actual capacity to control himself if he chose to. She further testified that she saw a distinction between the ability to control behavior in a structured environment or institution and the ability to do so unsupervised in the community. She testified that defendants mental disorder did not render him incapable of controlling his behavior.

David Michael Rhoades was a CYA correctional counselor assigned to the sex offender program at Stark in Chino. Defendant was in Rhoadess sex offender group for three or four months and in Rhoadess resource recovery group for about two months in 2004. Defendants participation in the sex offender group had been minimal at best, and he spoke only when confronted directly. He expressed a lot of anger about his own victimization. In the recovery group, defendant indicated that he had enjoyed his offense toward his victim, and he did not want to change anything about himself. Because defendant did not want to deal with his issues, Rhoades removed him from the group. Rhoades never witnessed a time when defendant lost control.

Case work specialist Michael Farmer was part of defendants treatment team at Stark from summer 2003 to summer 2004.  He conducted case conferences every other month with defendant, Dr. Poncin, and Yaw to discuss defendants progress in the program.  Defendants participation in group sessions had been inconsistent and limited, and he made minimal progress in dealing with the issues regarding his sexual offense.  He did not have good interaction with his peers and often got into conflicts with them by making racial or other comments to them.  A specific relapse prevention program was never discussed with defendant because he never demonstrated enough consistent knowledge of the assault cycle to work on such a plan.

Farmer compiled a section 1800 report on defendant in May 2004.  The report included defendants annual reviews, his treatment history, and his confinement history.  All the annual reviews from 1998 through 2004 stated defendant was not participating in groups or really addressing the significance of the commitment offense.  However, during confinement, defendants inappropriate behaviors had slowed down.

Defendant was returned to Chaderjian in 2004. Although he was no longer assigned to Gutierrezs caseload, Gutierrez observed that after his return, defendant seemed more mature and better able to manage himself, but in July or August 2004, defendant relapsed, in that he twice exposed himself to a female supervisor. Jimenez also observed that after defendants return to Chaderjian, defendant had made progress in his ability to handle frustrations and control his impulses.

Dr. Johnson reported that during defendants first placement at Chaderjian, he did literally almost nothing, but the second time, after his return in 2004, he did talk about his victims and he did go over his offense and he did begin his assault cycle. Defendant discussed the facts of his offense, although he still did not show empathy or remorse toward the victim. He had matured over time, and [he] was able to control himself and refrain from acting out as often, as frequently or as violently. He was doing a lot better the second time in that area as well. However, Dr. Johnson did not see defendant using the techniques he was being taught, because defendant continued to act out in the hall, although not in group. Although defendant was not an active participant in group, his participation was improved.

Dr. Johnson testified she believed defendant suffers from a mental disorder, but she did not believe that mental disorder causes him serious difficulty in controlling his behavior. Rather, she testified, Hes well planned. She explained, He has a disorder. Theres no doubt. He has several diagnos[e]s. But those do not create -- they do not impact his volitional behavior at all. Hes able to plan his offenses. He -- he actually -- even on the . . . writeups at CYA, all the behavior reports that Ive seen as far as his masturbating have been planned out ahead of time. The incident with the cook seemed to be relatively planned. And theres incidences throughout this report that talk about how well planned he is. He planned his commitment offense as well. But Im not disputing that he has the diagnos[e]s. Im just saying that they do not impact his ability to plan. As a matter of fact, hes well planned. She further explained that even an addict has the capacity to refrain . . . unless you have mental retardation or something where you arent capable.

Dr. Johnson was asked if she believed an addiction would cause a person to have serious difficulty in refraining from behavior, and she stated she did not believe so. She explained, Its programming. Its actually again relapse prevention. Its knowing your high risks, embracing treatment and high risks and intervention. Not willpower at all. It doesnt work. She stated that for an addicted person to stop, interventions would be required, and if such interventions were not in place, it would be more difficult, although not impossible. When asked if one who suffers from a mental disorder that causes serious difficulty in controlling behavior could still control that behavior, she responded, One could -- yes and no. I mean if its really -- if youre out of control and your mental illness affects you, then truly if it affects you and you cant control your behavior, you would act out. . . . Either you lack control because of it, Im psychotic, and I cant stop talking to myself, or, you know, Im something else. And I am able to control it. Somebody who is psychotic wouldnt be able to.

Dr. Inga Talbert, a clinical psychologist with CYA, conducted the section 1800 psychological evaluation of defendant.  Dr. Talbert had never participated in defendants treatment. In conducting the evaluation, she reviewed all his files and interviewed him over three days in April 2004.  She testified that during the interviews, defendant was easily distracted.  When she asked him about his commitment offense, he said he did not want to talk about it, and he told her to read his file.  He stated he had molested five child victims of both sexes starting when he was 13 years old.  He stated, Im a sexual sadist.  Im sexually aroused by pain that I inflict on my victims.  Defendant was detached and unemotional when discussing his victims, but he stated he had remorse for what he had done.

Defendant had been prescribed Welbutrin and Depacote because of his ADHD. Defendant told Dr. Talbert he used to masturbate when he was bored, but he no longer did so.  He had had surgery to remove a cyst on his testicle, and he claimed his tubes had been tied so nothing came out when he masturbated. He described himself as being quiet in school.  He denied getting into physical altercations or making verbal threats to other students.  He said he had been suspended three to five times.  He had graduated from high school while in CYA and had taken one college class.

Story Continued as Part II ..

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^[1] Effective July 1, 2005, the CYA is now called the Department of Corrections and Rehabilitation, Division of Juvenile Facilities. (Welf. & Inst. Code, 1703, subd. (c), 1710, subd. (a).) For the sake of clarity and consistency with the designation used by the trial court, we will refer to that entity as the CYA in this opinion.

^[2] All further statutory references are to the Welfare and Institutions Code unless otherwise specified.