Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. SCUKJD SQ091170704
Jones, P.J.
After appellant Anthony T. (the minor) admitted one count of continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a)), the juvenile court declared him a ward of the court and determined the violation came within the provisions of Welfare and Institutions Code section 707, subdivision (b) (Section 707(b)). The court ordered the minor committed to the Division of Juvenile Justice (DJJ) for a maximum term of 12 years.
Unless otherwise noted, all further statutory references are to the Penal Code. “Continuous sexual abuse under... section 288.5 is committed when a person who has recurring access to a child, over a period of time not less than three months, engages in three or more acts of substantial sexual conduct as defined in... section 1203.066, or three or more acts of lewd or lascivious conduct under section 288 with a child under the age of 14.” (In re Emilio C. (2004) 116 Cal.App.4th 1058, 1065, fn. omitted (Emilio C.).)
The DJJ was previously called the California Youth Authority (CYA). References to the DJJ and the CYA are to the same institution.
On appeal, the minor contends the court erroneously designated his violation of section 288.5, subdivision (a) as a Section 707(b) offense. He also claims the Section 707(b) designation was improper because he was not 16 years old at the time of the offense and that he was ineligible for DJJ commitment under Welfare and Institutions Code sections 731 and 733.
We conclude the court erroneously determined the minor’s violation of section 288.5, subdivision (a) was a Section 707(b) offense. We reverse and remand to the court to remove the Section 707(b) designation.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the probation report. On January 6, 2009, S.M., then 14, called the Child Protective Services crisis line to report that her older brother, the minor, had sexually abused her. She also said the minor had molested her younger sister. The next day, S.M. told a social worker and a sheriff’s deputy “she was ‘raped’ by [the minor] from the time she was six until she was approximately nine years old.” During one incident, the minor inserted his penis into S.M.’s vagina and anus while they were on the back porch of their house. A few weeks later, he “dipped his penis in a jar of honey and made her lick it off.” The minor also molested S.M.’s younger sister: he “pulled down her pants and ‘touched her.’” On a third occasion, the minor “made [S.M.] lay face down on a pile of clothes on the floor in the corner of the room” and inserted his penis into her anus.
The minor told S.M. not to tell anyone about what they had done. He also said having sex was their “‘special game’” and “threatened to never play or talk to [S.M.] again if she told anyone about their game.” S.M. was concerned that the minor would sexually abuse her younger siblings because her mother knew about the “molest[ation] and did nothing about it.” S.M. ultimately decided to report the abuse because the minor had, in various voicemail messages, threatened to kill her, her mother, and one of her sisters. The minor also threatened to “rape and kill” his siblings and to slit his mother’s throat and “watch the blood drip out.”
During an interview with a Mendocino sheriff’s deputy a few days later, the minor admitted “he molested his sisters” and had “always felt bad[ly] [about] it.” He recalled “doing stuff with his mouth” to S.M. and to her younger sister, “mainly in the vaginal area.” He also admitted “getting on top of S.M. and rubbing against her until he ejaculated in his pants” and having S.M. “lick his penis.” The minor also told the detective that he told his mother not to leave him alone with “the kids or he would ‘f@%k them in the ass.’” But he denied raping S.M.: he claimed he “went after [her] like a boy normally would[.]” He also said he did not recall dipping his penis into a jar of honey. Finally, he denied telling S.M. not to tell anyone about the incidents.
The People filed a Welfare and Institutions Code section 602 petition in January 2009. Count One alleged the minor had committed continuous sexual abuse of S.M. (§ 288.5, subd. (a)) when she was between seven and nine years old. Count Two alleged the minor had committed a lewd or lascivious act with S.M.’s younger sister (§ 288, subd. (a)) when she was approximately five years old. In February 2009, the minor admitted committing continuous sexual abuse of S.M. (§ 288.5, subd. (a)) and the prosecution dismissed the section 288, subdivision (a) charge. The minor was between 13 and 15 years old at the time of the offenses.
The minor had prior misdemeanor adjudications for trespassing (§ 602(l), vandalism (§ 594), and petty theft (§ 484).
At the dispositional hearing in May 2009, the court indicated it intended to follow the probation department’s recommendation to commit the minor to the DJJ for the maximum term of 16 years. After hearing argument from counsel, however, the court sustained the violation of section 288.5, subdivision (a) and committed the minor to the DJJ for a maximum term of 12 years. The court also determined the violation of section 288.5, subdivision (a) was an offense covered by Section 707(b). The minor did not object to the Section 707(b) designation.
In a July 3, 2009 letter, the DJJ asked the court to remove the Section 707(b) designation. The DJJ explained, “the court designated [section] 288.5... as an offense listed in [Section 707(b)].... [T]his designation results in termination of jurisdiction at age 25. We do not believe this is an offense listed in [Section 707(b)] and are requesting that the designation be removed.” Three days later, the minor appealed.
After the minor appealed, he asked the juvenile court to strike the Section 707(b) designation. The People opposed the request. On August 4, 2009, the juvenile court responded to the DJJ’s letter by stating the Section 707(b) designation was proper and, at a hearing the next day, the court informed the parties it had declined to remove the Section 707(b) designation. We granted the minor’s request to augment the appellate record to include: (1) the minor’s request to strike the Section 707(b) designation and the People’s opposition; (2) the transcript of the hearing on the minor’s request to strike the designation; and (3) the juvenile court’s correspondence with the DJJ. We note the existence of these documents but do not rely on them in reaching our conclusion. (Guardado v. Superior Court (2008) 163 Cal.App.4th 91, 95, fn. 1.)
DISCUSSION
The minor’s principal contention is the court erroneously classified his violation of section 288.5, subdivision (a) as a Section 707(b) offense.
I. The Minor Did Not Forfeit His Claim
The People contend the minor forfeited his claim by failing to raise it at the dispositional hearing. “As a general rule, only ‘claims properly raised and preserved by the parties are reviewable on appeal.’” (People v. Smith (2001) 24 Cal.4th 849, 852, quoting People v. Scott (1994) 9 Cal.4th 331, 354.) There is an exception to this rule where the court exceeds its statutory authority and imposes an unauthorized sentence. (Smith, supra, at p. 852; In re Luisa Z. (2000) 78 Cal.App.4th 978, 982.) This exception applies here. As a result, the minor may claim for the first time on appeal that the court exceeded its statutory authority and imposed an unauthorized sentence when it designated his violation of section 288.5, subdivision (a) as a Section 707(b) offense.
II. The Court Erroneously Classified the Minor’s Violation of Section 288.5, Subdivision (a) as a Section 707(b) Offense
As noted above, the minor contends the court erroneously classified his continuing sexual abuse violation as a Section 707(b) offense for two reasons. First, the minor argues section 288.5, subdivision (a) is not listed in Section 707(b). Second, the minor claims his conduct did not constitute a violation of section 288, subdivision (b), an offense that is listed in Section 707(b). To place the issues in context, we briefly describe the statutory scheme.
As a general rule, juvenile court jurisdiction and DJJ commitments must terminate when the offender reaches age 21. In 1982, however, the Legislature added subdivision (b) to Welfare and Institutions Code section 607 “to extend both juvenile court jurisdiction and CYA commitments to age 25 for minors who commit serious offenses.” (Assem. Bill No. 961, Stats. 1982, ch. 1102, §§ 1-2, pp. 4003-4004; In re Tino V. (2002) 101 Cal.App.4th 510, 512-513 (Tino V.); In re Sim J. (1995) 38 Cal.App.4th 94, 96.) Pursuant to Welfare and Institutions Code section 607, subdivision (b), “‘[t]he court may retain jurisdiction over any person who is found to be a person described in [Welfare and Institutions Code] Section 602 by reason of the commission of any of the offenses listed in [Section 707(b)] until that person attains the age of 25 years....’” (Tino V., supra, at pp. 512-513, italics omitted.)
The Legislature also added subdivision (b) to Welfare and Institutions Code section 1769 which provides: “Every person committed to the Department of the Youth Authority by a juvenile court who has been found to be a person described in [Welfare and Institutions Code] Section 602 by reason of the violation of any of the offenses listed in [Section 707(b)], shall be discharged upon the expiration of a two-year period of control or when the person reaches his or her 25th birthday, whichever occurs later... ” (Tino V., supra, 101 Cal.App.4th at p. 513, italics omitted.)
Therefore, if a minor has committed a Section 707(b) offense, the DJJ “maintains jurisdiction” over him or her “for two years or until the minor reaches the age of 25, whichever occurs later. [Citations.]” (Emilio C., supra, 116 Cal.App.4th at p. 1064; Tino V., supra, 101 Cal.App.4th at pp. 512-513 [a determination that an offense is covered by Section 707(b) “extend[s] the CYA’s jurisdiction [over the minor] to age 25”].) If the offense is not covered by Section 707(b), “the minor must be discharged after two years or upon turning 21, whichever occurs later. [Citations.]” (Emilio C., supra, at p. 1064.)
When a court commits a minor to the DJJ, it “must specify whether the minor’s offense is one covered by” Section 707(b). (Emilio C., supra, 116 Cal.App.4th at p. 1064, fn. omitted; Cal. Rules of Court, rule 5.805(2) [“court must specify whether the offense is one listed in [[s]ection 707(b)”].) Section 707(b) lists 30 offenses. (Welf. & Inst. Code, § 707(b).) “The offenses listed in [Section] 707(b) are extremely serious.” (10 Witkin, Summary of Cal. Law (10th ed. 2005) Parent and Child, § 837(2)(a), p. 1028.) Continuous sexual abuse of a child in violation of section 288.5, subdivision (a) is not listed in Section 707(b). Section 288, subdivision (b), which prohibits lewd and lascivious acts with a child under 14 by use of force, violence, duress, menace, or fear of bodily injury, is listed in Section 707(b).
Section 288, subdivision (a) prohibits “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....” (§ 288, subd. (a).) Subdivision (b) of that statute proscribes the commission of “an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person....” (§ 288, subd. (b)(1).)
B. Gary B. and Emilio C.
The People contend it is inconsequential the minor’s offense is not listed in Section 707(b) because his conduct constituted a violation of section 288, subdivision (b), an offense that is listed in Section 707(b). There is authority for the “general proposition that a court may, under certain circumstances, look beyond the bare elements of a juvenile adjudication to determine whether it is based on conduct qualifying under [S]ection 707[b].” (In re James H. (2007) 154 Cal.App.4th 1078, 1086-1087 (James H.); In re Gary B. (1998) 61 Cal.App.4th 844, 851 (Gary B.); Emilio C., supra, 116 Cal.App.4th at p. 1064.)
In Gary B., the Fourth District Court of Appeal held that “the juvenile court is entitled to base its section 707 determination on facts before it at the dispositional hearing which are either admitted by the minor or which the court finds to be true by a preponderance of the evidence.” (Id. at p. 850.) In that case, the minor pleaded guilty to robbing a 7-Eleven store; in return, the People dismissed, among other things, a personal firearm use enhancement. (Id. at p. 847.) The minor “offered the following factual basis for his admission: ‘On 7/20/96 I used a gun in a robbery of a 7[-]11 store....’” (Ibid.)
The juvenile court determined the robbery was covered by Section 707(b) and the minor appealed. (Gary B., supra, 61 Cal.App.4th at p. 848.) The Gary B. court affirmed. It determined the juvenile court properly considered that the minor “used a gun in deciding whether the robbery was one covered by” Section 707(b). (Gary B., supra, at p. 851.) As the court explained, “even though the enhancement under [ ] section 12022.5 alleging [the minor’s] personal use of a firearm during the commission of robbery was dismissed pursuant to a plea bargain, the [juvenile] court was entitled to consider the fact [the minor] used a gun in deciding whether the robbery was one covered by section 707, subdivision (b). The firearm use was described in the probation officer’s report, conceded by [the minor] in the written factual basis for his admission, and transactionally related to the robbery charge.” (Gary B., supra, at p. 851, fn. omitted.)
In Emilio C., supra, 116 Cal.App.4th at page 1063, the Second District Court of Appeal went one step further: It upheld the juvenile court’s determination that a minor’s violation of section 288.5 - which is not listed in Section 707(b) - also constituted a violation of section 288, subdivision (b), which is an offense specifically enumerated in Section 707(b). In that case, the Welfare and Institutions Code section 602 petition charged the minor with one count of violating section 288, subdivision (a) and one count of violating section 288.5. At the disposition hearing, the People presented evidence that the minor “sexually assaulted and raped his then seven-year-old niece 15 to 20 times” over a two-year period. (Emilio C., supra, at p. 1063.) The minor’s “niece testified that she did not disclose [the] assaults to anyone while the assaults were occurring because the [minor] repeatedly threatened her that he would do it again if she told anyone.” (Ibid.) The juvenile court sustained the petition as to the section 288.5 allegation and determined the minor’s crime was a Section 707(b) offense. (Emilio C., supra, at p. 1063.)
On appeal, the minor claimed the juvenile court erred because section 288.5 is not specifically enumerated in Section 707(b). (Emilio C., supra, 116 Cal.App.4th at p. 1064.) The Second District Court of Appeal rejected this argument. It explained the juvenile court was entitled to base its Section 707(b) determination on “facts presented at the disposition hearing that the court found to be true by a preponderance of the evidence. [Citation.] In doing so, the juvenile court was also entitled to look beyond the pleadings and consider the circumstances of [the minor’s] offense.” (Emilio C., supra, at p. 1065.)
The Emilio C. court concluded substantial evidence supported the juvenile court’s Section 707(b) designation because the evidence at the disposition hearing demonstrated the minor’s “repeated sexual assaults on his niece” constituted a violation of section 288, subdivision (b). (Emilio C., supra, 116 Cal.App.4th at p. 1066.) As the court explained, the minor “covered his niece’s mouth with his hand, pushed her to the ground and sexually assaulted her; that he continued to assault and rape her 15 to 20 times during the period from 1998 until October 30, 2000; and that he threatened to do it again if his niece told anyone about the assaults.” (Id. at p. 1066.)
We have no quarrel with the proposition set forth in both Gary B. and in Emilio C. that a juvenile court may look beyond the pleadings and the minor’s admission and may consider the circumstances of the offense to determine whether it is covered by Section 707(b). (See, e.g., James H., supra, 154 Cal.App.4th at p. 1087.) But neither Gary B. nor Emilio C. assists the People because both are completely factually distinguishable.
Gary B. does not apply here for the simple reason that the minor in that case pled guilty to robbery, an offense listed in Section 707(b). Here, and in contrast to Gary B., the minor did not plead guilty to an offense specifically enumerated in Section 707(b). Instead, he admitted violating section 288.5, subdivision (a). His admission established only the least adjudicated elements of that crime, namely: (1) he lived in the same home with S.M.; (2) he engaged in three or more acts of lewd or lascivious conduct with S.M.; (3) three or more months passed between the first and last acts; and (4) S.M. was under the age of 14 years at the time of the acts. (§ 288.5, subd. (a); People v. Vasquez (1996) 51 Cal.App.4th 1277, 1287 [elements of section 288.5].) The minor’s guilty plea did not establish that he committed a lewd or lascivious act “by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.” (§ 288, subd. (b); see generally In re J.P. (2009) 170 Cal.App.4th 1292, 1299 [court declined to “look beyond the statutory elements of the offense [the defendant] admitted” in the context of sex offender registration].)
Emilio C. is also distinguishable. In Emilio C., the People presented evidence at the disposition hearing and the court found various facts true by a preponderance of the evidence. Here, the People did not present any evidence at the disposition hearing. As a result, the only evidence before the judge was the probation officer’s report, which contained conflicting statements about the incidents. In the probation report, S.M. described the incidents and said the minor raped her, “dipped his penis in a jar of honey and made her lick it off, ” and “made [her] lay face down on a pile of clothes on the floor in the corner” of a room in their house and sodomized her. The minor, however, denied having sex with, and denied raping, S.M.
Contrary to the People’s argument, the conflicting information in the probation report does not establish the minor violated section 288, subdivision (b) by committing a lewd or lascivious act by use of force or duress. (§ 288, subd. (b).) For purposes of section 288, subdivision (b), force means “physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.” (People v. Cicero (1984) 157 Cal.App.3d 465, 474; In re Asencio (2008) 166 Cal.App.4th 1195, 1200.) For example, several cases have concluded a defendant uses force when he restrains the victim during the sex act or holds a portion of the victim’s body to reduce the victim’s resistance. (See, e.g., People v. Neel (1993) 19 Cal.App.4th 1784, 1790 [defendant forced the victim’s head down on his penis, grabbed her wrist, placed her hand on his penis, and “‘ma[de] it go up and down’”]; People v. Babcock (1993) 14 Cal.App.4th 383, 385, 388 [finding force when the defendant grabbed the victims’ hands and made them touch his genitals, and where the defendant pulled one victim’s hand back when she tried to pull it away].)
The People contend there is substantial evidence the minor used force. They rely on People v. Alvarez (2009) 178 Cal.App.4th 999, 1005, where the appellate court stated that “force” for purposes of forcible lewd conduct in violation of section 288, subdivision (b) “includes acts of grabbing, holding and restraining that occur in conjunction with the lewd acts themselves.” In Alvarez, the defendant carried the victim to the couch, resisted her attempts to push him away while he kissed her, and held her “‘tight’” and “‘hard’” while he “digitally penetrated her against her will.” The defendant also grabbed the victim’s hand and “made her hold his penis. Whenever she let go, he took her hand and brought it back to his genital area.” (Alvarez, supra, at p. 1005.) The Alvarez court concluded the defendant “applied physical force that was substantially different from that necessary to accomplish the lewd acts themselves.” (Ibid.)
There is no such evidence of physical force here. S.M. told the authorities the minor “made [her] lay face down on a pile of clothes on the floor in the corner” while he sodomized her and that he “dipped his penis in a jar of honey and made her lick it off.” The minor, however, denied having intercourse with S.M. and said he did not “remember anything to do with a jar of honey[.]” In contrast to Alvarez, there is no evidence here that the minor carried or moved S.M., or that he held her down during any of the incidents. There is a similar absence of evidence the minor grabbed any part of S.M.’s body, or that he and S.M. struggled during the acts. Given the limited factual record before us, we cannot conclude the minor’s act of “making” S.M. perform various acts constitutes “physical force that was substantially different from that necessary to accomplish the lewd acts themselves.” (Cicero, supra, 157 Cal.App.3d at pp. 485-486 .)
Nor does the information in the probation report establish the minor used duress to accomplish the sexual abuse. Duress includes “‘“a direct or implied threat of... hardship or retribution sufficient to coerce a reasonable person of ordinary sensibilities to... perform an act which otherwise would not have been performed....”’” (People v. Perez (2010) 182 Cal.App.4th 231, 243, quoting People v. Schulz (1992) 2 Cal.App.4th 999, 1005; People v. Leal (2004) 33 Cal.4th 999, 1004.)
According to the People, the minor used duress to commit the lewd or lascivious acts because he was an older, “semi-parental” figure and because he threatened S.M. “‘“The total circumstances, including the age of the victim, and [her] relationship to defendant are factors to be considered in appraising the existence of duress.” [Citation.]’ [Citations.] ‘Other relevant factors include threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family.’ [Citations.]”” (People v. Veale (2008) 160 Cal.App.4th 40, 46.)
Based on the record before us, the circumstances here are insufficient to establish the minor violated section 288, subdivision (b) by committing a lewd or lascivious act by means of duress. By themselves, the minor’s age and position of relative dominance over S.M. are insufficient to establish duress. (See People v. Espinoza (2002) 95 Cal.App.4th 1287, 1321 [“[d]uress cannot be established unless there is evidence that ‘the victim[’s] participation was impelled, at least partly, by an implied threat....’”].) The only remaining evidence relevant to the existence of duress is the minor’s threats. Here, S.M. claimed the minor “threatened to never play or talk to [S.M.] again if she told anyone about their game.” The minor denied telling S.M. not to report the incidents. Crediting S.M.’s version of the events, a reasonable interpretation of the evidence is the minor threatened S.M. after the sex acts - not before - to stop her from reporting the abuse, not to induce her to perform acts which she otherwise would not have performed.
Having reached this result, we need not consider the minor’s alternate argument that the court erroneously designated his section 288.5, subdivision (a) violation as a Section 707(b) offense because he was not 16 when it occurred. We note, however, that several courts have considered and rejected the argument the minor makes here. (See, e.g., In re Veronique P. (2004) 119 Cal.App.4th 195, 200-201 [juvenile court had authority to commit minor, who was 14 years old at the time of the offenses, to the CYA]; see also Seiser & Kumli, Cal. Juvenile Courts Practices and Procedure (2009) § 3.96[6][e], p. 3-162, citing cases.)
III. Welfare and Institutions Code Sections 731 and 733 do not Preclude the Minor’s Commitment to the DJJ
The minor’s final argument is he cannot be committed to the DJJ because he has “never committed a [Section] 707(b) offense.” He relies on Welfare and Institutions Code section 731, subdivision (a)(4), which authorizes a court to commit the minor to the DJJ “if the ward has committed an offense described in [Section 707(b)] and is not otherwise ineligible for commitment to the division under [Welfare and Institutions Code] Section 733.” The minor urges us to conclude a commitment to the DJJ is proper only where the minor is adjudged to be a ward of the juvenile court pursuant to Welfare and Institutions Code section 602 and his or her most recent offense is one listed in Section 707(b).
We decline to adopt this rule. “On September 1, 2007, the Legislature amended former [Welfare and Institutions Code] section 733. (Stats. 2007, ch. 175, § 22.) The new legislation limits eligibility for commitment to DJ[J] to minors found to have committed the criminal offenses listed in [Section 707(b)] and the sex offenses listed in... section 290, former subdivision (d)(3). (Welf. & Inst. Code, § 733, subd. (c).)” (V.C. v. Superior Court (2009) 173 Cal.App.4th 1455, 1459-1460 (V.C.).) As amended, Welfare and Institutions Code section 733, subdivision (c) “limits the commitment of a minor to DJ[J] to cases where the minor has been, or is adjudged to be, a ward of the juvenile court pursuant to Welfare and Institutions Code section 602 and the minor’s ‘most recent offense alleged in any petition and admitted or found to be true by the court’ is an offense listed in [Section 707(b)], or a sex offense listed in... section 290.008, subdivision (c).” (V.C., supra, at p. 1459, fn. omitted, italics added.)
Here, the minor’s violation of section 288.5, subdivision (a) is a “sex offense” under section 290.008, subdivision (c). Thus, it was a “DJ[J] eligible offense” under Welfare and Institutions Code section 733, subdivision (c). (See V.C., supra, 173 Cal.App.4th at p. 1466 & fn. 10.) We reject the minor’s contention to the contrary.
DISPOSITION
The dispositional order is reversed. The case is remanded to the juvenile court to remove the Section 707(b) designation and to send an amended dispositional order to the DJJ.
We concur: Simons, J., Needham, J.