In re Luis M.
Filed 6/3/13 In
re Luis M. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
>
In re LUIS M., a Person Coming Under the Juvenile Court Law. | |
THE PEOPLE, Plaintiff and Respondent, v. LUIS M., Defendant and Appellant. | F065438 (Super. Ct. No. 08CEJ600958) |
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
County. Rosendo Peña, Jr., Judge.
Arthur L.
Bowie, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Tiffany
J. Gates, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant
and minor, Luis M., appeals from a juvenile court order modifying the dispositional
order in his Welfare and Institutions Code section 602 proceeding. (All further statutory references are to this
code unless otherwise specified.) Minor
contends the order directing that he be housed at the Division of Juvenile
Facilities (DJF) pursuant to section 1752.16 was beyond the juvenile court’s
statutory power, deprived him of various constitutional
rights, and included impermissible conditions of probation. We disagree and affirm.
FACTS AND PROCEDURAL HISTORY
In 2008,
when minor was 12 years old, he placed his finger in the anus of a six-year-old
boy. He had also done so on prior
occasions. After a section 602 petition
was filed, minor admitted one count of violation of Penal Code section 288,
subdivision (a), commission of a nonforceable lewd act on a child. Minor was adjudicated a ward of the juvenile
court and placed in the custody and control of the probation officer. On May 11, 2011, after minor absconded from a
group home and was a fugitive in Mexico for over a year, the juvenile court
committed him to DJF for a maximum period of seven years. Minor appealed from that order.
In December 2011, while minor’s
appeal was pending, the Supreme Court held, in In re C.H. (2011) 53 Cal.4th 94, that a juvenile court may only
commit a ward to DJF “if the ward … committed an offense listed in section
707[, subdivision] (b) and then only if the ward’s most recent offense alleged
in any petition and admitted or found to be true by the juvenile court [was]
either an offense enumerated under section 707[, subdivision] (b) or a sex
offense described in Penal Code section 290.008[, subdivision] (c).†(Id.
at p. 108.)
title="">[1] This court subsequently reversed the juvenile
court’s order for minor’s commitment and remanded the matter for further
proceedings. (In re Luis M. (May 17, 2012, F062562) [nonpub. opn.].)
Prior to the case being heard again
in the juvenile court, the Legislature enacted
section 1752.16 as urgency legislation “to address the California
Supreme Court’s ruling in In re C.H. (2011) 53 Cal.4th 94.†(Id.,
subd. (b); see Stats. 2012, ch. 7, § 3.) Section 1752.16, subdivision (a),
provided that DJF could contract with any county of this state to furnish
housing to a ward who was in its custody on the date In re C.H. was decided and who was there for the commission of an
offense listed in Penal Code section 290.008, subdivision (c),
committing an offense described in subdivision (b) of section 707.
On remand, the juvenile court
recalled the commitment to DJF in accordance with In re C.H., supra, and modified the dispositional order. The court continued minor as a ward, placed
him in the care and custody of the probation officer, and directed that he be
housed at DJF to complete the sex offender treatment program. The court ordered: “Upon completion of the [DJF] sex offender
program, Probation is to bring the minor back for further hearing on his change
of detention status at that point.â€
Minor contends the order for his participation in the DJF
sexual offender treatment program is merely “an unauthorized DJF commitment
with … a semantic twist,†prohibited by In
re C.H., supra, 53 Cal.4th 94. We
disagree. There are consequential differences
between a DJF commitment order and the order in this case. First, a ward committed to DJF for the
commission of a sex crime listed in Penal Code section 290.008,
subdivision (c), is required to register as a sex offender pursuant to
Penal Code section 290, subdivision (b).
(See id., § 290.008,
subd. (a).) There is no similar
requirement for wards committed to juvenile hall for the same offense. (See In
re Crockett (2008) 159 Cal.App.4th 751, 760; see also In re Bernardino S. (1992) 4 Cal.App.4th 613, 619-620
§ 290, subd. (d)].) Second, when a
ward is committed to DJF, the decision to release the ward from custody resides
with the Juvenile Parole Board, not with the juvenile court. (§§ 1766, 1769; see In re Allen N. (2000) 84 Cal.App.4th 513, 515-516.) Third, a commitment to DJF does not
necessarily end with the completion of the treatment program. Fourth, once released from DJF custody, a
minor would be subject to juvenile parole.
By contrast, in the case of a housing order like the one in this case,
the requirement for completion of the sexual offender program is merely one
condition of probation, with control of custody and probation remaining in the
juvenile court. Completion of the
treatment program results in the minor being returned to the juvenile court for
local disposition of his case. The
housing order is intended to provide beneficial therapy for minor; the order is
not merely a semantically different authorization of the same punishment
declared impermissible in In re C.H.
Minor contends the housing order is
not a statutorily authorized disposition in a section 602 proceeding. Again, we disagree. The juvenile court had authority to direct
that the probation officer seek placement of minor in the DJF sexual offender
program.
law to utilize the new treatment resource created by section 1752.16. Section 202, subdivision (e)(4),
authorizes the juvenile court to commit a ward to juvenile hall. As with all dispositional orders on section
602 petitions, wards “shall, in conformity with the interests of public safety
and protection, receive care, treatment, and guidance that is consistent with
their best interest, that holds them accountable for their behavior, and that
is appropriate for their circumstances.â€
(§ 202, subd. (b).) “If a
minor is adjudged a ward of the court on the ground that he or she is a person
described by Section 601 or 602, the court may make any reasonable orders for
the care, supervision, custody, conduct, maintenance, and support of the minor,
including medical treatment ….â€
(§ 727, subd. (a)(1).)
Section 731, subdivision (a)(3), permits the juvenile court to order a
ward to “participate in a program of professional counseling as arranged and
directed by the probation officer as a condition of continued custody of the
ward.†The sexual offender program
offered by DJF pursuant to section 1752.16 is merely another treatment
alternative available to counties, and an order that a ward receive treatment
through such a program is fully authorized by sections 202, 727, and 731.
Minor contends section 1752.16,
subdivision (a), deprives him of constitutional equal protection because
“similarly situated wards could be treated differently based simply on their
county of confinement,†depending on whether or not DJF entered into a housing
contract with the particular county.
Minor cites no legal authority on point, and we are aware of no
authority requiring uniformity of county rehabilitation resources. The juvenile court in each county considers
all available resources in making the dispositional order in any particular
case. (See, e.g., § 730,
subd. (a).) A county with a local
sexual offender program at its juvenile facility might be less likely to enter
into a section 1752.16 contract with DJF, just as a juvenile court in such
a county might exercise its discretion differently than would a juvenile court
with no such local resource. Individual
exercises of discretion by prosecutors and judges do not provide a basis for an
equal protection challenge unless the discretion involves “invidious
discrimination†or “vindictive or retaliatory†reasoning. (Manduley
v. Superior Court (2002) 27 Cal.4th 537, 569-571 [prosecutor’s charging
discretion under § 707, subd. (d)].)
The Legislature’s decision to provide an additional rehabilitation
alternative to counties in need of such a program does not violate the equal
protection rights of persons in the counties that accept such an offer.
Minor
contends there is no statutory authority for placement of his custody under the
dual control of DJF and the juvenile court, and that the order for such dual
control is unconstitutionally vague because it does not allocate authority
between the two entities. Minor asks,
“Does [minor] have any remedy if DJF shifts the target and subjects all
‘housed’ wards to a new sex offender treatment program which they must start
anew after already partially completing earlier programs?†Minor has not suggested any possible motivation
DJF might have for such a waste of resources, and the juvenile court explicitly
ordered that the current treatment program “is to continue so that you do not
have to restart that upon your return to the DJF.†More generally, it is clear that the statutory
scheme retains in the juvenile court supervision and control over a ward. That supervision and control is not altered
by the ward’s participation in the DJF sexual offender program. Unquestionably, a ward placed in a group
home, a residential treatment program, or juvenile hall (or an older ward
housed in the county jail under § 208.5) is answerable on a daily basis to
those who operate the program, but that does not change the ultimate
responsibility of the juvenile court for the ward’s supervision and
control. (See § 727, subd.
(a).) Similarly, when a ward is placed
on probation and housed at DJF pursuant to section 1752.16, the juvenile
court retains ultimate responsibility for supervision and control. The responsibility of a service provider, in
this case DJF, for the day-to-day operation of the program for wards, with
ultimate supervision and control in the juvenile court, is not unprecedented;
it is, as stated, the same as a myriad of placements of wards under the Welfare
and Institutions Code. The supervisory
relationship is authorized by sections 727, subdivision (a) and 1752.16, and
that relationship does not result in an unconstitutionally vague order.
Minor contends section 1752.16
violates constitutional prohibitions on ex post facto laws (see U.S. Const.,
art. I, § 10; Cal. Const., art. I, § 9) because section 1752.16
permits the court to “impos[e] a greater restriction on his liberty than was
available at the time the conduct occurred in 2009.†This contention is without merit.
“[N]o statute falls within the ex
post facto prohibition unless ‘two critical elements’ exist.†(John
L. v. Superior Court (2004) 33 Cal.4th 158, 172.)
solely because he was, prior to the effective date of that section, the subject
of a section 602 petition charging a crime listed in Penal Code section
290.008, subdivision (c), and was serving a commitment to DJF on the date
decided. Accordingly, the first
requirement for a prohibited ex post facto law has been met.
The second
requirement for a prohibited ex post
facto law is that the law must have one or more of the following four
effects: to make criminal acts that were
innocent when done; to make the crime greater or more aggravated than it was
when committed; to inflict a greater punishment for the crime than was
available when the crime was committed; or to alter the rules of evidence or
the required proof for conviction. (
Cal.4th at p. 172 & fn. 3.) Minor
contends section 1752.16 violates the third of these prohibitions; that is, he
contends section 1752.16 increases the punishment that could have been imposed
upon him at the time he committed his section 602 offense. To the contrary, both before and after the
enactment of section 1752.16, a ward could be confined in a variety of
juvenile institutions run by the county (§ 730, subd. (a)) and could be
ordered to “participate in a program of professional counseling as arranged and
directed by the probation officer as a condition of continued custody of the
ward.†(§ 731, subd. (a)(3).) The mere fact that the state created an
additional resource to provide sexual offender treatment, and that this
resource was in a different location than the existing local programs, does not
constitute an increase in the punishment authorized for purposes of the ex post
facto clauses. (See People v. Cruz (2012) 207 Cal.App.4th 664, 672, fn. 8 [serving
sentence locally is not lesser punishment than serving same length sentence in
state prison for ex post facto purposes].)
Minor also
contends the juvenile court abused its discretion in requiring the DJF sexual
offender treatment program as a condition of probation “without considering any
alternatives.†The record is to the
contrary. The juvenile court stated that
less restrictive alternatives “have previously been tried and failed.†The probation officer reported that if minor
was released “into the community, he would be required to enroll and wait to
begin a less restrictive treatment program,†leaving the minor in danger of
reoffending during the delay. In
response, the court noted that minor’s progress through the DJF sexual offender
treatment program had been slow, even though he had been in the program for a
significant time. Under these
circumstances, the accuracy of which minor does not contest, the juvenile court
did not abuse its discretion by requiring minor to continue in the DJF
treatment program.
Finally, minor contends the court
failed to develop a case plan for minor’s reunification with his family; minor
contends a case plan is required by section 706.6. Section 706.6 is inapplicable; it applies only
when a minor is placed in foster care.
(See § 706.6, specifying contents of plan when required under
§ 706.5 [applicable when foster care is contemplated or ordered].) Here, the primary impediment to family
reunification was minor’s failure to complete the sexual offender treatment
program. The juvenile court’s amended
dispositional order clearly addresses the need for minor to complete that
program before other steps necessary to achieve reunification could be
evaluated. The juvenile court directed
that minor be returned to court after completion of the program “for further
hearing on his change of detention status at that point.â€
DISPOSITION
The
dispositional order of July 11, 2012, is affirmed.
name="_ftn1" title="">* Before
Kane, Acting P.J., Detjen, J. and Franson, J.
name="_ftn2" title="">[1] As
noted, minor admitted one count of violation of Penal Code section 288,
subdivision (a). At the time of minor’s
offense, section 731, subdivision (a)(4) provided that a minor adjudged a ward
pursuant to section 602 could be committed to DJF only if the minor had
committed an offense described in section 707, subdivision (b). (See Stats. 2007, ch. 175, § 19.) While forcible lewd or lascivious conduct,
described in Penal Code section 288, subdivision (b), is listed in section 707,
subdivision (b), nonforcible lewd or lascivious conduct, proscribed by Penal
Code section 288, subdivision (a), is not.
(See In re C.H., supra, 53
Cal.4th at p. 99, fn. 3.)
