Filed 4/29/13




                          CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            FIFTH APPELLATE DISTRICT

In re ROBERT M., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,                                                      F064841

        Plaintiff and Respondent,                         (Super. Ct. No. 512000)

                  v.
                                                               OPINION
ROBERT M.,

        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Stanislaus County. Susan D.
Siefkin, Judge.
        John K. Cotter, 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, Robert M., appeals from the juvenile court‟s order
modifying the dispositional order in his Welfare and Institutions Code section 602
proceeding.1 Minor contends the order directing that he be housed at the Division of
Juvenile Facilities (DJF) pursuant to section 1752.16 is unconstitutional in various
respects, violates the Supreme Court‟s mandate in In re C.H. (2011) 53 Cal.4th 94, and is
an abuse of the juvenile court‟s discretion. We disagree and affirm.
                                        HISTORY
       On January 25, 2010, approximately one month after his 17th birthday, minor
disrobed his three-year-old sister and placed his finger in her vagina. Minor entered a no-
contest admission to a section 602 petition that alleged one count of violation of Penal
Code section 288, subdivision (a) (lewd or lascivious act on a child under 14), and one
count of violation of Penal Code section 289, subdivision (j) (sexual penetration of a
child under 14 and more than 10 years younger than the perpetrator). At the dispositional
hearing on April 13, 2010, the juvenile court declared minor a ward of the court and
committed him to DJF, with a maximum commitment of 96 months. This court affirmed
the commitment order on appeal. (In re Robert M. (Jan. 28, 2011, F060094).) The
Supreme Court granted review.
       In December 2011, the Supreme Court held, in In re C.H., supra, 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




1     All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.



                                             2.
described in Penal Code section 290.008[, subdivision] (c).” (Id. at p. 108.)2
       In February 2012, the Supreme Court transferred minor‟s case to this court with
directions to reconsider the cause in light of the decision in In re C.H., supra, 53 Cal.4th
94. On remand, this court reversed the juvenile court‟s order committing minor to DJF
and remanded the matter to the juvenile court for further proceedings. (In re Robert M.
(Mar. 23, 2012, F060094).)3
       In June 2012, section 1752.16 was enacted as urgency legislation “to address the
California Supreme Court‟s ruling in In re C.H. (2011) 53 Cal.4th 94.” (Id., subd. (b).)
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 In re C.H. was decided (Dec. 12, 2011) and who was committed to DJF
for the commission of an offense listed in Penal Code section 290.008, subdivision (c),


2      Section 707, subdivision (b), lists 30 serious and violent crimes which, when
committed by a minor 14 years of age or older, permit proceedings to determine whether
the minor should be tried as an adult for the offense. (Other related provisions require
prosecution as an adult in some circumstances not relevant to the present case. (See In re
Eddie M. (2003) 31 Cal.4th 480, 487, fn. 3.)) Section 707, subdivision (b), serves an
additional purpose, however: section 731, subdivision (a)(4), at the time of minor‟s
offense, 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). 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.) Nor are nonforcible Penal Code section 289
offenses listed in section 707, subdivision (b).
        Penal Code section 290.008, subdivision (c), contains a different listing of crimes.
Subdivision (a) of that statute 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. All
violations of Penal Code section 288 are included in the Penal Code section 290.008,
subdivision (c) list, as are all violations of Penal Code section 289.
3      We grant minor‟s request that we take judicial notice of the record in F060094.



                                             3.
but who had not committed an offense listed in section 707, subdivision (b). After
continuances in the juvenile court to permit further filings concerning appropriate
modifications of the dispositional order, on May 4, 2012, the juvenile court entered an
amended dispositional order committing minor “to Juvenile Hall of Stanislaus County
until he reaches the age of 21 with housing at the Division of Juvenile Facilities”
pursuant to section 1752.16. The juvenile court also stated: “[Minor] is to complete sex
offender counseling at the Division of Juvenile Facilities in which he was previously
enrolled and participating. And upon completion of that sex offender counseling, he is to
be returned to the Stanislaus County Juvenile Court for possible modification of his
sentence.”
                                       DISCUSSION
       Minor agrees he is a person described in section 1752.16, but contends, first, that
section 1752.16 and the order for housing entered in this case are merely “a transparent
procedural subterfuge” to avoid the holding of In re C.H., supra, 53 Cal.4th 94, and, as
such, the statute and the order “threaten[] to demean the integrity of the entire judicial
process.” We disagree. A commitment to DJF and a commitment to juvenile hall with
housing at DJF are distinctly different orders with different results. First, a ward
committed to DJF who has committed any of the wide variety of 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 committed to juvenile hall for the same sexual
offenses. (See In re Crockett (2008) 159 Cal.App.4th 751, 760 [Court accepted
respondent‟s concession that “„[j]uveniles adjudicated in California must register for a
list of more serious sex offenses, and petitioner‟s offenses are among those requiring
registration in California…. However, registration for one of the listed offenses is
required only if the juvenile was also incarcerated at the California Youth Authority, now
the Division of Juvenile Justice … (DJJ).‟”]; see also In re Bernardino S. (1992) 4

                                              4.
Cal.App.4th 613, 619-620 [former Pen. Code, § 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 that made the commitment. (§§ 1766, 1769; see
In re Allen N. (2000) 84 Cal.App.4th 513, 515-516.) By contrast—and as shown in the
juvenile court‟s order from which this appeal is taken—the decision concerning release of
the ward from custody remains with the juvenile court judge. These two factors
demonstrate that such a housing order is not merely a semantically different authorization
of the same punishment declared impermissible in In re C.H.4
       Minor also contends a housing order pursuant to section 1752.16 violates the stare
decisis concepts articulated in Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450. (“The decisions of this court are binding upon and must be followed by all the state
courts of California.” (Id. at p. 455.)) This argument misconstrues the holding of In re
C.H., supra, 53 Cal.4th 94. That case did not hold that wards who committed Penal Code
section 290.008, subdivision (c), crimes could not constitutionally be committed to DJF.
In re C.H. simply held that the Legislature had not authorized such commitments under
the statutes then existing. The Supreme Court expressly stated: “[T]he Legislature is
free to reconsider the policy set out in the current statutes if it wishes to do so.” (53
Cal.4th at p. 108.) It is clear that the Legislature has done so. For new offenses, Statutes
2012, chapter 7, section 1, amends section 731, subdivision (a) to expand the list of
offenses for which a ward can be committed to DJF to include the offenses listed in Penal
Code section 290.008, subdivision (c). For persons such as minor, section 3 of chapter 7
creates section 1752.16, specifically permitting the type of housing order employed in the
present case. (See Stats. 2012, ch. 7, § 3.) In both instances there is now statutory

4      In this case, the juvenile court expressed its concern that a housing order under
section 1752.16 might be used to justify incarceration of minor at DJF without providing
the services of the sexual offender program. Accordingly, the order specifies that minor
will be returned to county custody once he completes the sexual offender program.



                                              5.
authority for a DJF order. It was placement at DJF without statutory authority that was
prohibited in In re C.H., supra, 53 Cal.4th 94. The new statute fully satisfies the
requirements of In re C.H., and actions taken under it do not violate the doctrine of Auto
Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d 450.
       Minor next contends the juvenile court lacks statutory authority to authorize
housing at DJF because no such dispositional alternative is available under sections 202
and 727. Section 202, subdivision (e)(4), authorizes the 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.” (§ 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
….” (§ 727, subd. (a).) Section 731, subdivision (a)(3), permits the 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. The juvenile court had
authority to direct that the probation officer seek placement of minor in the DJF sexual
offender program.5

5      The written order in this case might be construed as ordering DJF to house minor
during his commitment to juvenile hall. However, the juvenile court did not order joinder
of DJF as a party pursuant to section 727, former subdivision (a) (the statute was
amended effective Jan. 1, 2013), and, as a result, had “no authority to order services”
from the agency. (Ibid.; see Stats. 2012, ch. 130, § 2.) It is clear from the transcript of
oral proceedings that the court, in essence, merely authorized the probation officer to


                                             6.
       Minor contends that, to the extent the statutory scheme permits the juvenile court
to order his participation in the DJF sexual offender program, it violates the equal
protection guarantees of the federal and state Constitutions. (See U.S. Const., 14th
amend.; Cal. Const., art. I, § 7.) He says section 1752.16, because it permits, but does not
require, individual counties to contract with DJF for housing of participants in the sexual
offender program, “violates equal protection because similarly situated wards could be
treated differently based simply on their county of commitment, i.e., as to whether or not
the county had entered into a contract with the D.J.F.” Minor cites no legal authority in
support of this argument, 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 such counties that accept such an offer.
       Minor contends the dispositional order in this case impermissibly intermingles the
responsibilities of the probation department and the responsibilities of DJF. He contends


seek housing at DJF for the purpose of minor‟s participation in the sexual offender
program during the time minor was otherwise in juvenile hall; the court did not purport to
order DJF to accept minor into the program.



                                              7.
the joint responsibility that results is unprecedented, unauthorized by the Welfare and
Institutions Code, and unconstitutionally vague. It is clear from the statutory scheme,
however, that the juvenile court retains supervision and control over a minor. That
supervision and control is not altered by the minor‟s participation in the DJF sexual
offender program. Unquestionably, a ward placed in a foster 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 committed to juvenile hall
pursuant to section 202, subdivision (e)(4), 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: The juvenile court clearly ordered that minor
“successful[ly] complet[e]” DJF‟s sexual offender program. The court clearly has the
retained jurisdiction to determine whether minor has done so.
       Minor next contends section 1752.16 is an unconstitutional ex post facto law.
(See U.S. Const., art. 1, § 10; Cal. Const., art. 1, § 9.) The state and federal ex post facto
laws have the same meaning. (John L. v. Superior Court (2004) 33 Cal.4th 158, 171-
172.) “[N]o statute falls within the ex post facto prohibition unless „two critical
elements‟ exist.” (Id. at p. 172.) “First, the law must be retroactive.” (Ibid.)
Section 1752.16 is applicable to minor 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

                                              8.
C.H., supra, 53 Cal.4th 94 was decided. Accordingly, the first requirement for a
prohibited ex post facto law is 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: it makes criminal acts that were innocent
when done; it makes the crime greater or more aggravated than it was when committed; it
inflicts a greater punishment for the crime than was available when the crime was
committed; or it alters the rules of evidence or the required proof for conviction. (John
L., supra, 33 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. This contention is without merit.
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 minor‟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

                                              9.
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.
       Minor‟s remaining contentions are not supported by the record. First, he contends
the juvenile court abused its discretion by failing to consider local alternatives to the DJF
sexual offender program. However, the probation officer contacted a local residential
program which informed the officer it would not accept minor because he was ineligible
for foster-care placement (due to his age), and the probation officer stated reasons why no
other residential facilities were available. The juvenile court fully considered these
alternatives. Minor has not demonstrated the court abused its discretion. (See In re
Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.) Second, minor contends the juvenile
court erred by continuing minor “on probation” and erred in attempting to “retain[]
jurisdiction” to impose conditions of probation at a later date. In fact, however, minor
was continued as a ward of the juvenile court and was committed to juvenile hall until his
21st birthday. He was conditionally authorized to be housed at DJF until he completed
the sexual offender program. Such an order, and other similar orders, are authorized by
section 730, subdivision (b): When a ward is committed to juvenile hall under
section 730, subdivision (a), “the court may make any and all reasonable orders for the
conduct of the ward …. The court may impose and require any and all reasonable
conditions that it may determine fitting and proper to the end that justice may be done
and the reformation and rehabilitation of the ward enhanced.” (Id., subd. (b).)




                                             10.
                                     DISPOSITION
       The order of May 4, 2012, is affirmed. Minor‟s request, filed September 20, 2012,
that we take judicial notice of the appellate record in F060094 is granted.



                                                                 _____________________
                                                                            DETJEN, J.
WE CONCUR:


 _____________________
 POOCHIGIAN, Acting P.J.


 _____________________
 FRANSON, J.




                                            11.
