In re T.B.
Filed 6/3/13 In
re T.B. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 T.B., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and
Respondent,
v.
T.B.,
Defendant and
Appellant.
F065456
(Super.
Ct. No. 08CEJ601014-1)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
County. Rosendo Peña, Jr., Judge.
Maureen M.
Bodo, 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, Carlos A. Martinez and Wanda
Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant
and former minor, T.B., 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.) Appellant 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 affirm.
FACTS AND PROCEDURAL HISTORY
In 2007,
when appellant was 13 years old, he pushed a woman into her car, lifted her
shirt and groped her breast. As
appellant attempted to pull down his pants, the woman escaped. After appellant turned 14, he assaulted a
motel maid while she was cleaning a room, pushed her onto the bed, held a gun
to her head, lifted her shirt and groped her breast. Appellant lowered his pants and tried to
force the woman to orally copulate him.
The woman was able to escape.
Appellant admitted two counts of a section 602 petition, sexual battery
by restraint (count 2, Pen. Code, § 243.4, subd. (a)) and assault
with intent to commit rape (count 4, Pen. Code, § 220); other counts were
dismissed. The juvenile court determined
the maximum period of confinement was seven years. It committed appellant to DJF on January 22,
2009. Neither offense admitted by
appellant is listed in section 707, subdivision (b); assault with intent to
commit rape is listed in Penal Code section 290.008,
subdivision (c)(1).
name="_ftnref2" title="">[1]
In December 2011, 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 is either an offense enumerated under section
707[, subdivision] (b) or a sex offense described in Penal Code section
290.008[, subdivision] (c).†(
as urgency legislation “to address the California Supreme Court’s ruling in In
re C.H. (2011) 53 Cal.4th 94.†(§ 1752.16,
subd. (b); see Stats. 2012, ch. 7, § 3.) Section 1752.16, subdivision (a),
provides that DJF “may enter into contracts with any county of this state for
[DJF] to furnish housing to a ward who was in the custody†of DJF on the date
and who was committed to DJF for the commission of an offense listed in Penal
Code section 290.008, subdivision (c), but who had not committed an
offense listed in section 707, subdivision (b). Appellant is such a person.
On June 27, 2012, the juvenile
court recalled appellant’s commitment to DJF and set the matter for a further
juvenile court admitted appellant, by then 18 years old, to probation. The court ordered, as a condition of
probation, that appellant be housed at DJF and complete the sexual offender
treatment program there. The juvenile
court imposed other conditions of probation, including a requirement that
appellant “attend psychological, substance abuse assessment counseling or
treatment as ordered by the probation officer.â€
The court ordered that jurisdiction over appellant end on his 21st
birthday, in 2015.
Appellant contends the requirement that he be housed at
DJF and complete their sexual offender treatment program violates the
prohibition of In re C.H., supra, 53
Cal.4th at pages 97 through 98, limiting DJF commitments to only those wards
who have committed a section 707, subdivision (b), offense. Appellant contends the juvenile court’s order
is merely a procedural subterfuge that attempts to mask an unauthorized order
for commitment of appellant to DJF. We
disagree. The juvenile court’s housing
order differs from a commitment to DJF in two fundamental ways. First, a ward committed to DJF who has
committed any of the sex crimes 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 placed on probation for the same sexual 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, after 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.) By contrast, 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 with the juvenile
court. These two factors demonstrate
that the order in this case is not merely a semantically different
authorization of the same punishment declared impermissible in
Appellant next contends that
section 1752.16 authorized DJF to house wards, but it did not, by its terms,
authorize juvenile courts to place wards at DJF. In other words, appellant contends, the
statute did not create new dispositional alternatives for the juvenile
court. Again we disagree. The juvenile court is authorized by existing
law to utilize the new treatment resource created by section 1752.16 and direct
the probation officer to seek placement of appellant in the DJF sexual offender
program.
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.
Appellant contends section 1752.16
violates state and federal equal
protection concepts because it leaves with each county of the state the
discretion to enter into a contract with DJF.
Appellant 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 resources. 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 those counties in need of such a program does not violate the equal
protection rights of persons in the counties that accept such an offer.
Appellant contends the juvenile
court’s order for housing at DJF for sexual offender treatment is
unconstitutionally vague because it leaves uncertain what power over appellant
is allocated to DJF and what is retained by the court. Appellant asks, “Does appellant, who is in a
sex offender treatment program, have any remedy if DJF institutes new rules
subjecting all ‘housed’ wards to a new sex offender treatment program which
must be started anew, even if they have already partially completed a previous
program?†Appellant has not suggested
any possible motivation DJF might have for such a waste of resources, and the
juvenile court explicitly ordered appellant be “allowed to continue [in] the
stage [of the program] that he had previously achieved.†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.
Appellant contends an order for
housing under section 1752.16 violates prohibitions on ex post facto laws
contained in the federal and state Constitutions. (See U.S. Const., art. I, § 10; Cal.
Const., art. I, § 9.)
name="_ftnref5" title="">[4] 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, supra, 33 Cal.4th at p. 172.) “First, the law must be retroactive.†(Ibid.) Section 1752.16 is applicable to
appellant 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 In re C.H., supra, 53
Cal.4th 94 was 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. (John
L., supra, 33 Cal.4th at p. 172 & fn. 3.)
Appellant 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. 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].)
In addition, for wards of
appellant’s age, section 208.5, both before and after the enactment of section
1752.16, permitted a ward who is committed to juvenile hall to be housed in the
county jail. (See In re Ramon M. (2009) 178 Cal.App.4th 665, 673.) It cannot realistically be argued that
housing at DJF for the limited purpose of successful completion of the sexual
offender program is a greater punishment than a fixed term of commitment to
juvenile hall, with housing at the county jail, where the ward has no ability
to effectuate his release through completion of a counseling program. Because it does not authorize punishment of a
type or duration greater than permitted before its enactment, section 1752.16
is not a prohibited ex post facto law.
DISPOSITION
The
dispositional order is affirmed.
name="_ftn1" title="">* Before
Cornell, Acting P.J., Kane, J. and Detjen, J.
name="_ftn2" title="">[1] At the time of appellant’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 appellant had committed an
offense described in section 707, subdivision (b). (See Stats. 2007, ch. 175,
§ 19.) Penal Code section 290.008,
subdivision (a) requires that any person who is discharged after he or she has
been committed to DJF based on a section 602 petition alleging any of the
offenses listed in Penal Code section 290.008, subdivision (c), shall register as
a sex offender.
