In re J.B.
Filed 12/15/08 In re J.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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 J.B., a Person Coming Under the Juvenile Court Law. | |
THE PEOPLE, Plaintiff and Respondent, v. J.B., Defendant and Appellant. | F055112 (Super. Ct. No. 06CEJ600892-IV) OPINION |
APPEAL from an order of the Superior Court of Fresno County. Martin Suits, Commissioner.
Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant, J.B., was committed to the Department of Juvenile Justice after he admitted violating probation by leaving the facility he was committed to without permission as alleged in a December 7, 2007 notice filed pursuant to Welfare and Institutions Code section 777.[1] He appeals, claiming the juvenile court is barred from committing him to the Department of Juvenile Justice because the section 777 notice is a petition, and his most recent offense (the probation violation) alleged in that petition does not qualify him for a commitment to the Department of Juvenile Justice because it is not an offense listed in section 733, subdivision (c).[2]We affirm.
Background
A Welfare and Institutions Code section 602 petition was filed on July 7, 2006, alleging that appellant committed five sex crimes against two minor victims. He later admitted that counts one and two, violations of Penal Code section 288, subdivision (a) (lewd and lascivious acts with a child under the age of 14) were true. He was placed on probation and on March 28, 2007 he was committed to Alpha Connection Youth and Family Services (ACYFS).
On December 7, 2007, a section 777 notice was filed, alleging that appellant violated his probation by leaving ACYFS without permission. Appellant subsequently admitted the probation violation. The court then committed him to the Department of Juvenile Justice for a maximum confinement period of eight years.
Discussion
Section 733 provides that a ward of the juvenile court may not be committed to the Department of Juvenile Justice under certain circumstances. One such circumstance is set out in subdivision (c): The ward has been or is adjudged a ward of the court pursuant to Section 602, and the most recent offense alleged in any petition and admitted or found to be true by the court is not described in subdivision (b) of Section 707, unless the offense is a sex offense set forth in subdivision (c) of section 290.008 of the Penal Code. This subdivision shall be effective on and after September 1, 2007.[3]
Subdivision (c) of section 290.008 sets forth various sex offenses, including those that appellant committed pursuant to Penal Code section 288.
Appellant contends that "the most recent offense" as that term is utilized in section 733 is his probation violation and he is not subject to commitment to the Department of Juvenile Justice based on the admitted allegation that he left ACYFS without permission. Therefore he argues the court could not commit him to the Department of Juvenile Justice based on the Penal Code section 288 violations contained in the section 602 petition because they were not "the most recent offense alleged in any petition and admitted or found to be true by the court." ( 733, subd. (c).)
This issue was recently determined in In re J.L. (2008) 168 Cal.App.4th 43. The court concluded that a violation of probation alleged in a section 777 notice "does not constitute an offense alleged in a 'petition' within the meaning of section 733, subdivision (c)." (Id. at p. 47.) The court reasoned that section 777 was transformed by Proposition 21 (The Gang Violence and Juvenile Crime Prevention Act of 1998, eff. March 8, 2000) into a probation violation procedure in which no criminal offense can be alleged. "In view of the different procedures in a proceeding under section 602 as compared to a proceeding under section 777, including that the former is initiated by a petition while the latter is initiated by a notice, and the constitutional distinctions between alleging that a crime has been committed as compared to alleging that probation has been violated, we conclude that the reference to a 'petition' in section 733, subdivision (c), refers to a petition that is filed under section 602 but not a notice filed under section 777." (In re J.L., supra, at p. 47.)
We agree with the well-reasoned opinion in In re J.L. Appellants probation violation was not a petition containing an offense; thus the court properly committed him to the Department of Juvenile Justice because his most recent offense, a Penal Code section 288 violation, allowed such a commitment.
Disposition
The dispositional order is affirmed.
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VARTABEDIAN, Acting P. J.
WE CONCUR:
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DAWSON, J.
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KANE, J.
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[1]All future code references are to the Welfare and Institutions Code unless otherwise noted.
[2]Formerly known as the California Youth Authority, the facility for confining youths is now known as the Division of Juvenile Facilities, which is within the Department of Corrections and Rehabilitation, Division of Juvenile Justice. We refer to it as the Department of Juvenile Justice.
[3]At the time of the original section 602 petition against J.B., section 733 did not contain the restrictions now set forth in subdivision (c). We shall assume, without deciding, that J.B. is subject to current section 733, subdivision (c) because that code section was in effect at the time J.B. was committed to the Department of Juvenile Justice.
