In re Shannon W.
Filed 4/3/07 In re Shannon W. CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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In re SHANNON W., a Person Coming Under the Juvenile Court Law. | |
THE PEOPLE, Plaintiff and Respondent, v. SHANNON W., Defendant and Appellant. | C051614 (Super. Ct. No. JV112989) |
Following a contested jurisdiction hearing on an amended subsequent petition, the Sacramento County Juvenile Court found that minor Shannon W. came within the provisions of Welfare and Institutions Code section 602[1]in that he committed forcible lewd acts against a girl under age 14 (Pen. Code, 288, subd. (b)(1)--count one), assault with intent to rape (Pen. Code, 220--count two), attempted rape (Pen. Code, 261, subd. (a)(2), 664--count four), false imprisonment (Pen. Code, 236--count five), and forcible rape in concert (Pen. Code, 264.1--count seven).[2] The minor was committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (hereafter DJF),[3]for up to nine years but not to exceed age 25.[4]
On appeal, the minor contends (1) there was no substantial evidence that he would benefit from a DJF commitment, and (2) his federal constitutional rights were violated when the juvenile court committed him to DJF without substantial evidence of probable benefit. We shall affirm the judgment.
Facts
On October 28, 2004, 13-year-old S.E. walked home from school with two girlfriends, C.C.[5]and K.W. They were accompanied by a group of young males from the same school, including the minor, D.T., C.S., J.M. (whom S.E. knew as Stank), and several other boys. When they arrived at S.E.s second-story apartment, S.E. told the males that they could not come inside. K.W. proceeded to her own apartment, which is visible from S.E.s apartment, to put her things away. S.E. and C.C. went inside S.E.s apartment and locked the door. K.W. telephoned S.E. and asked if she and C.C. could come outside.
S.E. and C.C. came outside and locked the door. D.T. knocked S.E. down and grabbed the key to the apartment from her. D.T. then let himself and his male friends into S.E.s apartment over her objection. C.C. helped S.E. get up. S.E. and K.W. went inside, and C.C. went home. S.E. asked the males to leave, but they did not listen to her.
At one point, S.E., D.T. and the minor were in the bathroom with the door closed. D.T. gave S.E. a hickey on her neck. D.T. kissed S.E., and she kissed him back, but she pushed him away when he tried to unbutton her pants. K.W. heard S.E. scream, and she banged on the bathroom door, but one of the boys blocked her way. Then the minor grabbed S.E. and pulled her over to him. She pulled away from him and left the bathroom.
Upon leaving the bathroom, S.E.s hair was messed up and her eyes were wet. She noticed that the living room was a mess. K.W. left after S.E. got out of the bathroom. Most of the males had left; only the minor, D.T., C.S. and J.M. remained.
S.E. walked down the hall to her parents bedroom. J.M. pushed her onto the bed and tried to remove her pants. D.T. entered the room and removed S.E.s pants. Her underwear was ripped in the process. D.T. got on top of S.E. and forced his penis into her vagina, causing her head to bang against the bedroom wall. At the same time, J.M. tried to put his penis into S.E.s mouth. His penis was about six inches away from her left cheek. Eventually the telephone rang, and D.T. got off of S.E. S.E. got up, put her pants on, and left the bedroom to go answer the telephone.
Following the telephone call, C.S. picked up S.E., put her over his shoulder, and took her back into the bathroom. The bathroom door was closed and the lights were off. One of the males removed S.E.s pants. The minor was in front of her and had his penis on her vagina. At the same time, Stank was behind S.E. and tried to put his penis in her anus. Stank said he was going to do [S.E.] from behind. The minor said that he should have been first. S.E. put her pants on and told the minor to stop. The minor responded, [y]our pants are coming off. He got her onto the bathroom floor and removed her pants. His penis did not enter her vagina. Pretty soon the minor got up and left.
That night, S.E. underwent a sexual assault examination at a medical center. The doctor who examined S.E. stated that she had evidence of acute hymenal trauma. Her injuries were rated a six on a scale of zero to six, with six being the highest level of injury.
Discussion
I
The minor contends there was no substantial evidence in the record suggesting that he would probably benefit from a DJF commitment. We disagree.
Our standard of review may be succinctly stated: The decision of the juvenile court may be reversed on appeal only upon a showing that the court abused its discretion in committing a minor to CYA. [Citations.] An appellate court will not lightly substitute its decision for that rendered by the juvenile court. We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them. [Citations.] In determining whether there was substantial evidence to support the commitment, we must examine the record presented at the disposition hearing in light of the purposes of the Juvenile Court Law. [Citations.]" (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.) Those purposes include the protection and safety of the public; to that end, punishment is now recognized as a rehabilitative tool. ( 202, subds. (a), (b); Michael D., supra, at p. 1396.)
Section 734 provides: No ward of the juvenile court shall be committed to the Youth Authority unless the judge of the court is fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided by the Youth Authority.
Thus, [t]o support a CYA commitment, it is required that there be evidence in the record demonstrating probable benefit to the minor, and evidence supporting a determination that less restrictive alternatives are ineffective or inappropriate. (In re Teofilio A. (1989) 210 Cal.App.3d 571, 576.)
The minor claims there was no evidence that DJF would provide him care, treatment and guidance consistent with his best interests. He faults the juvenile court for failing to identify his rehabilitative needs beyond a generalized statement that he needed counseling, and for failing to determine that any program provided by DJF would adequately address those needs. However, there is no requirement that the evidence show precisely what services the minor would receive at DJF. It is established that DJF has specialized institutions and rehabilitative programs tailored to the delinquents sophistication and need for security (In re Tyrone O. (1989) 209 Cal.App.3d 145, 153), and the juvenile court was not required to admit specific evidence to establish that fact in this case.
In any event, there was evidence that the crimes were very serious and showed that the minor lacks respect for human rights, especially toward women. A psychological report noted that the minor acts impulsively, resists authority, has little understanding of how his behavior affects others, does not appear to understand why it is important to follow societys rules, and lacks internal behavioral self-control. The psychologist opined that the minor is at a moderate risk to continue his inappropriate sexual behavior at this time;[6]that he needs psychological counseling to deal with his inappropriate sexual behavior; that an average course of treatment in a group home would range from 12 to 18 months; and that the minors denial of culpability, despite the courts findings, make counseling and rehabilitation of questionable benefit.
There was also evidence that the minor failed to succeed in less restrictive placements previously ordered by the juvenile court, such as the Youth Center Program and the Sacramento County Boys Ranch, both of which offered counseling services. In fact, the minor had been furloughed from the Boys Ranch the month prior to the present offenses. During his furlough, he violated a probation condition by remaining away from his mothers residence. A few days later, the probation officer contacted the minor and directed him to return to the Boys Ranch. The minor failed to obey that directive and committed the present offenses 13 days later. Then, during his detention in juvenile hall for the present offenses and the probation violation, the minor engaged in seven documented incidents.
On this record, the juvenile court could doubt that the nearly 17-year-old minor could successfully complete group home treatment prior to his 18th birthday or within the average time frame of 12 to 18 months. Thus, the court could deduce that the minor probably would benefit from the substantially lengthier commitment, potentially until age 25, offered by DJF. The fact this same evidence could also be reconciled with a desire to confine and punish the minor does not require reversal of the judgment. (E.g., Peoplev.Perez (1992) 2 Cal.4th 1117, 1126.)
During the course of the disposition hearing for minor D.T., the juvenile court briefly mentioned reports that had been critical of the then-California Youth Authority. No such reports were entered into evidence in the minors case, and none are included in our record. Since appellate review is limited to evidence that was before the trial court and is in the appellate record (People v. Waidla (2000) 22 Cal.4th 690, 703, fn. 1 (Waidla)), we do not consider the minors references to such reports in support of his contention.
II
The minor contends his Sixth and Fourteenth Amendment due process rights were violated when the juvenile court committed him to DJF without substantial evidence that he probably would benefit from that commitment. We have already rejected the evidentiary premise of this argument in section I of the Discussion, ante. For the reasons stated therein, we also reject the present argument.[7]
The minor further contends the state should be estopped from contending on appeal that DJF can provide effective rehabilitation or treatment for the minor because the Attorney General has effectively stipulated to the absence and/or ineffectiveness of such programs at CYA. We disagree.
The minor has forfeited his estoppel claim by failing to assert it in the juvenile court. (People v. Smithey (1999) 20 Cal.4th 936, 995; In re Brian K. (2002) 103 Cal.App.4th 39, 42.) In any event, as we have noted, the documents containing the purported stipulation were not before the juvenile court and are not in the appellate record. Thus, even if not forfeited, the claim is not properly before us. (Waidla, supra, 22 Cal.4th at p. 703, fn. 1.)
Disposition
The judgment is affirmed.
DAVIS , J.
We concur:
BLEASE , Acting P.J.
BUTZ , J.
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[1] Hereafter, undesignated section references are to the Welfare and Institutions Code.
[2] Counts of grand theft (Pen. Code, 487--count three) and burglary (Pen. Code, 459--count six) were dismissed for insufficient evidence.
[3] The Department of Corrections and Rehabilitation consists of Adult Operations, Adult Programs, Juvenile Justice, the Corrections Standards Authority, the Board of Parole Hearings, the State Commission on Juvenile Justice, the Prison Industry Authority, and the Prison Industry Board. (Gov. Code, 12838, subd. (a).) A chief deputy secretary oversees juvenile justice. (Id., 12838, subd. (c).) Within the Department of Corrections and Rehabilitation, under the Chief Deputy Secretary for Juvenile Justice, are the Division of Juvenile Facilities, the Division of Juvenile Programs, and the Division of Juvenile Parole Operations. (Id., 12838.3.) Commencing July 1, 2005, any codified reference to the Department of the Youth Authority refers to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities. (Welf. & Inst. Code, 1710, subd. (a).)
[4] The maximum term consists of nine years for rape in concert and six years concurrently for forcible lewd and lascivious acts. The three remaining counts were stayed pursuant to Penal Code section 654.
[5] The Attorney General erroneously identifies C.C. as S.F., who is the minors mother.
[6] Curiously, the report also found that the minor does not appear to pose a significant risk to engage in inappropriate sexual behavior in the community. The report did not purport to differentiate between significant and moderate.
[7] As part of his argument, the minor requests that this court take judicial notice of the legislative history of section 202. We deny the request as unnecessary (see Placer County Local Agency Formation Com. v. Nevada County Local Agency Formation Com. (2006) 135 Cal.App.4th 793, 799, fn. 5), and because the request was not made in a separate motion as required by California Rules of Court, Rule 8.252(a)(1) (see Hess Collection Winery v. Agricultural Labor Relations Bd. (2006) 140 Cal.App.4th 1584, 1595, fn. 3).
