In re Brian J., E038381.

• Court: California Court of Appeals
• Writing for the Court: Hollenhorst
• Citation: 150 Cal.App.4th 97,58 Cal.Rptr.3d 246
• Parties: In re BRIAN J, a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. Brian J, Defendant and Appellant.
• Docket Number: No. E038381.,E038381.
• Decision Date: 24 April 2007

58 Cal.Rptr.3d 246 150 Cal.App.4th 97 In re BRIAN J, a Person Coming Under the Juvenile Court Law.
The People, Plaintiff and Respondent,
v.
Brian J, Defendant and Appellant. No. E038381. Court of Appeal, Fourth District, Division 2. April 24, 2007.

[58 Cal.Rptr.3d 250]

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.

OPINION

HOLLENHORST, Acting P.J.

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 Code² 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

Defendant's 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 victim's back and threatened to cut him if he did not "shut up." Holding the victim down, defendant put his penis in the victim's mouth and urinated. He whipped the victim

58 Cal.Rptr.3d 251

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 defendant's 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 defendant's 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 Defendant's 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 defendant's 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.

58 Cal.Rptr.3d 252

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 defendant's file and interviewed defendant. In addition, defendant had attended Dr. Shumsky's 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 defendant's 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. Defendant's 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." Defendant's 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]

58 Cal.Rptr.3d 253

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...