In re Vincent H.

Filed 11/29/05 In re Vincent H. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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In re VINCENT M., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. VINCENT M., Defendant and Appellant.	C046670 (Super. Ct. No. JV98793)

Vincent M. (the minor) was alleged to have sexually assaulted one woman and severely beaten another. He entered a negotiated plea to assault with intent to commit rape (Pen. Code, § 220) and was committed to the California Youth Authority (CYA) for a maximum confinement period of seven years, four months.^[1] (In re Vincent M. (July 30, 2004, C045438) [nonpub. opn.].) He appealed, and this court modified his term of maximum confinement to seven years, two months. (Ibid.)

Thereafter, the minor unsuccessfully petitioned the trial court to modify the CYA commitment (Welf. & Inst. Code, § 778; further section references are to the Welfare and Institutions Code), claiming the circumstances had changed because he was not being given the counseling or sex offender treatment that the court expected when committing him to CYA.^[2]

On appeal, the minor contends the trial court abused its discretion in refusing to modify the CYA commitment. We shall affirm the order.

BACKGROUND

After interviewing and testing the minor for purposes of the initial dispositional hearing, Dr. Shawn Johnston reported to the trial court that “only a referral to the California Youth Authority can simultaneously accomplish the two critical goals of protecting the community and providing [the minor] the treatment he needs. The results of the present testing and interviewing, [the minor’s] criminal history, and increasingly serious criminal behavior make it clear that [he] is at high risk of reoffending in my opinion, both with regard to sexual and non-sexual offenses. The present results indicate that he is at such high risk of reoffending he would pose a threat to the health and safety of the community if granted probation.”

At the hearing, Dr. Johnston testified that CYA had excellent sex offender and outpatient parole treatment programs, and opined that CYA was the only place where the minor could be treated simultaneously for his conduct disorder, his alcohol abuse disorder, and his propensity for committing sex offenses.

The trial court found that Dr. Johnston’s testimony was “persuasive,” “compelling,” and a “strong” basis for committing the minor to CYA.

At the April 12, 2004 hearing on the petition to modify his placement, the minor testified as follows:

After he was delivered to CYA on October 8, 2003, he spent a month at the reception center but received no treatment or counseling. In November 2003, he was transferred to DeWitt Nelson Youth Correctional Facility (DeWitt), where he stayed for a month and a half but received no counseling or treatment. While at DeWitt, he was physically assaulted on six occasions by gang members.^[3] Because of the assaults, he was transferred to N.A. Chaderjian Youth Correctional Facility (Chaderjian). There, he was required to stay in his room 23 hours per day, did not receive psychological counseling or other treatment, and again was attacked by gang members. His schooling consisted of a packet of self-study material provided to him only two weeks prior to the hearing.

According to the minor, although it “would be possible” to get “gang management,” anger management, and sexual offender counseling at DeWitt, and these programs were supposed to be available at Chaderjian, neither he nor anyone he knew at Chaderjian were enrolled in these programs. He was told that the sex offender programs are six months long and drug treatment programs are five months long, but neither would be available to him until six months before his parole release date, which was set for April 15, 2005.

Attached to the minor’s petition were six reports regarding studies done at CYA, all of which were highly critical of CYA’s programs and procedures.^[4]

DISCUSSION

Citing case authority and statutory law relating to factors to be considered in making a CYA commitment, the minor contends the trial court abused its discretion in “re-committing [him] to the Youth Authority.” We are not persuaded.

The denial of a section 778 petition to modify a commitment to CYA is not a recommitment to CYA; it simply is a refusal to modify the commitment. Consequently, appellant’s citations to case authority and statutory law relating to CYA commitments are inapplicable.

The pertinent law is that which relates to petitions filed pursuant to section 778. In such proceedings, “the trial court must necessarily consider the matters which formed the basis of the order previously made in order to ascertain whether there has been a ‘change of circumstance’ or ‘new evidence’ warranting a change, modification or setting aside of such previous order.” (In re Corey (1964) 230 Cal.App.2d 813, 831.) The burden of proving a change of circumstance or new evidence is upon the petitioner. (Cal. Rules of Court, rule 1432(g).) “[I]t is well established that the modification or termination rests in the sound discretion of the trial court and, in the absence of a clear showing of abuse of discretion, an appellate court is not free to interfere with the trial court’s order.” (In re Corey, supra, 230 Cal.App.2d at pp. 831-832.)

The minor’s argument for changed circumstances was as follows:

At the dispositional hearing conducted on September 22, 2003, which resulted in the CYA commitment, Dr. Johnston’s testimony, plus his report of his psychological evaluation of the minor, showed (1) the minor was in need of intensive treatment as a sex offender and for “his unfolding Antisocial Personality Disorder”; (2) CYA offered such treatment and had “one of the finest out-patient parole treatment programs for juvenile sex offenders . . . of any state in the country”; (3) it was “imperative” that the minor receive such treatment; and (4) “only a referral to [CYA] guarantees [the minor] will receive the kind of long-term treatment he so desperately needs.”

In committing the minor to CYA, the trial court stated it was “persuaded by Dr. Johnston that [the minor] must have the level of treatment that’s provided only in the California Youth Authority” and the fact he would receive such treatment “is the compelling reason” for ordering the commitment.

The changed circumstance was that CYA did not provide the treatment Dr. Johnston had said the minor would receive.

In denying the section 778 petition, the trial court stated it recalled the dispositional hearing and Dr. Johnston’s comments, and that even though CYA’s services were not as good as it had hoped for, the court nevertheless remained persuaded that CYA was the appropriate facility to meet the minor’s needs. The court noted that part of the reason the minor had not received the intended services was because he had “brought some baggage with him . . . in terms of gang activity,” and thus had to be moved around. The record further reflects that according to CYA, it was “going to correct” the deficiencies in treatment services.

Under the circumstances, the juvenile court did not abuse its discretion in denying the petition to modify placement. The court was aware that appellant had been at CYA only a short time, that part of the reason he had not received treatment was because of his tattoos showing gang affiliation, and that CYA purportedly was going to correct the problems with its treatment program. Consequently, the court reasonably could conclude that CYA still offered the best balance between (1) the protection of society from the minor, and (2) the greatest likelihood for his rehabilitation.

DISPOSITION

The order denying the section 778 petition is affirmed.

SCOTLAND , P.J.

We concur:

DAVIS , J.

BUTZ , J.

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^[1] In addition to the assault with intent to commit rape, the minor had been found to have committed four other crimes -- unlawful taking of a vehicle (twice), receiving stolen property, and brandishing a deadly weapon.

^[2] Section 778 states: “Any parent or other person having an interest in a child who is a ward of the juvenile court or the child himself through a properly appointed guardian may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a ward of the juvenile court for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall be verified and, if made by a person other than the child, shall state the petitioner’s relationship to or interest in the child and shall set forth in concise language any change of circumstance or new evidence which are alleged to require such change of order or termination of jurisdiction. [¶] If it appears that the best interests of the child may be promoted by the proposed change of order or termination of jurisdiction, the court shall order that a hearing be held and shall give prior notice, or cause prior notice to be given, to such persons and by such means as prescribed by Sections 776 and 779, and, in such instances as the means of giving notice is not prescribed by such sections, then by such means as the court prescribes.

^[3] The minor had gang tattoos but denied being an active gang member.

^[4] They were the Inspector General’s Report (Nov. 2002), the Byrnes Report (Aug. 2002), the Thomas Report (Sept. 2003), the Trupin Report (Dec. 2003), the Krisberg Report (Dec. 2003); and the O’Rourke Report (Dec. 2003).