In re J.G.
Filed 7/5/12 In
re J.G. CA1/5
OFFICIAL REPORTS
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIRST APPELLATE DISTRICT
DIVISION FIVE
Coming Under the Juvenile Court Law.
A133145
(
Super.
J.G. appeals from a dispositional
order entered in a proceeding commenced under Welfare and Institutions Code
section 602. He contends the juvenile
court erred in ordering him to register as a sex offender, because he was not
committed to the custody of the Department of Juvenile Justice. (Pen. Code, § 290.008.) We will strike the provision of the
offender registration and affirm the order in all other respects.
I.
FACTS AND PROCEDURAL HISTORY
A juvenile wardship petition
filed in June 2011 alleged that appellant committed a rape in May 2011. (Pen. Code, § 261, subd. (a)(2).)
A jurisdictional hearing was held in
July 2011. Although the facts underlying
appellant’s offense are not necessary for the resolution of his appeal, suffice
it to say that, according to the prosecutor’s case, appellant held down a tenth
grader on a bed at a friend’s house, pulled off her shorts and underwear as she
was saying “help†and “no,†inserted his penis into her vagina, put his hand
over her mouth, and told her to “[s]hut up, bitch†when she continued to
protest. The court found beyond a
reasonable doubt that appellant had committed
The probation department report
recommended that appellant be committed to the care, custody and control of the
probation officer, removed from his mother’s home, and placed in a family home
or group home “under the standard out-of-home probation conditions with
additional conditions.†The probation
department report did not recommend that appellant be required to register as a
sex offender.
The dispositional hearing was held
on September 1,
2011.
The prosecutor concurred in the proposed disposition. Appellant’s counsel indicated that he had
discussed the disposition with appellant and appellant’s mother, and appellant
was “prepared to be placed.â€
The juvenile court found that “the
minor’s welfare requires that his custody be taken from his parent†under
Welfare and Institutions Code section 726, subdivision (a)(3). The court added: “he is declared a ward and committed to the
care, custody, and control of the Probation Officer to be removed from his
mother and placed in a suitable family home or group home.â€
The court also stated that appellant
was “ordered to be registered pursuant to the sexual offense registration
requirements of the code.†The following
exchange ensued: “[DEFENSE COUNSEL]: Your honor, the Court order regarding sexual
registration, that’s consistent with the Welfare and Institutions Code,
right? [¶] THE COURT: Yes.
[¶] [DEFENSE COUNSEL]: Because
I believe that that’s required only if he goes to CYA. So it’s consistent with the Welfare and
Institutions Code. [¶] THE
COURT: Yes.â€
The written minute order was in line
with these pronouncements and required that appellant “[r]egister as sex
offender.â€
This appeal followed.
II.
DISCUSSION
Appellant contends the juvenile
court lacked authority to impose the requirement that he register as a sex offender. Respondent agrees, as do we.
Section 290.008, subdivision (a)
reads: “Any person who, on or after
January 1, 1986, is discharged or paroled
from the Department of Corrections and Rehabilitation to the custody of which
he or she was committed after having been adjudicated a ward of the
juvenile court pursuant to Section 602 of the Welfare and Institutions Code
because of the commission or attempted commission of any offense described in
subdivision (c) shall register in accordance with the Act.†(Italics added.) There is no dispute that appellant’s offense
is an offense listed in subdivision (c) of section 290.008. But there is also no dispute that appellant
was not committed to the custody of
the Department of Corrections and
Rehabilitation.
Before enactment of section 290.008
in 2007, the relevant authorization for imposing the registration requirement
was contained in section 290, subdivision (d), which differed from the current
statute in that it referred to the “Department of the Youth Authority†rather
than the “Department of Corrections and Rehabilitation.†(See In
re Derrick B. (2006) 39 Cal.4th 535, 539 fn. 3 (Derrick B.).) Former section
290, subdivision (d) did not authorize an order of sex offender registration
for a ward who was not actually committed to the California Youth
Authority. (In re Bernardino S. (1992) 4 Cal.App.4th 613, 619-620. See In
re J.P. (2009) 170 Cal.App.4th 1292, 1299.)
By the same analysis, section 290.008 does not authorize an order of sex
offender registration for a ward who is not committed to the Department of
Corrections and Rehabilitation, the relevant division of which is the Division
of Juvenile Justice (as the Youth Authority is now known). No other authority for the registration
requirement was cited by the court or proposed by the parties. (See Derrick
B., supra, 39 Cal.4th at pp. 539-540.)
Because appellant was committed “to
the care, custody, and control of the Probation Officer†and ordered “placed in
a suitable family home or group home,†rather than being committed to the
Department of Corrections and Rehabilitation, the juvenile court erred in
imposing the sex offender registration requirement.
III.
DISPOSITION
The dispositional order of September
1, 2011, is stricken to the extent it requires appellant to register as a sex
offender. The dispositional order is
affirmed in all other respects.
NEEDHAM,
J.
We concur.
JONES, P. J.
SIMONS, J.
otherwise indicated, all statutory references are to the Penal Code.
