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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           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,                                                                                F065438

         Plaintiff and Respondent,                                          (Super. Ct. No. 08CEJ600958)

                   v.
                                                                                         OPINION
LUIS M.,

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Rosendo
Peña, Jr., Judge.
         Arthur L. Bowie, under appointment by the Court of Appeal, for Defendant and
Appellant.




*        Before Kane, Acting P.J., Detjen, J. and Franson, J.
       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)




                                             2.
or a sex offense described in Penal Code section 290.008[, subdivision] (c).” (Id. at
p. 108.)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),2 but who had not been adjudged a ward for 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.”



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.)
2     Conduct described in Penal Code section 288, subdivision (a), the section minor
admitted, is listed in Penal Code section 290.008, subdivision (c).



                                              3.
                                      DISCUSSION
       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 [discussing former Pen. Code, § 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




                                             4.
that the probation officer seek placement of minor in the DJF sexual offender program.3
The juvenile court is authorized by existing 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.”
(§ 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)(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

3      Minor contends there is no evidence that a contract exists between Fresno County
and DJF for housing participants in the sexual offender program. While the existence of
such a contract was implicitly assumed by all the participants in the lower court
proceedings, if that assumption is erroneous, the matter can be addressed in further
proceedings for modification of the terms of probation. The existence of the contractual
relationship between the county and the state does not affect the authority of the juvenile
court to impose sexual offender treatment as a condition of probation.



                                              5.
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

                                              6.
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.4
       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.)5 “First, the
law must be retroactive.” (Ibid.) Section 1752.16 is applicable to minor solely because


4       Minor‟s reliance on In re Angela M. (2003) 111 Cal.App.4th 1392, 1399,
footnote 8, and In re Allen N., supra, 84 Cal.App.4th 513, is misplaced. In those cases,
the ward was committed to the Youth Authority, the predecessor of DJF. Then, as now,
the state authorities determined when wards committed by the juvenile court would be
released, and on what terms of parole. Accordingly, the juvenile court‟s attempt to
impose postrelease terms of probation on a ward who had been committed to the Youth
Authority was an impermissible intrusion into the statutory authority vested in the Youth
Authority. In the present case, the lack of jurisdiction in DJF to impose postrelease
conditions on minor is, as we have noted earlier, a key feature of the system established
by section 1752.16; postrelease supervision of the ward continues to be vested in the
juvenile court. The juvenile court retains jurisdiction to modify the treatment-program
condition of probation and impose other reasonable conditions of probation.
5     The state and federal ex post facto laws have the same meaning. (John L. v.
Superior Court, supra, 33 Cal.4th at pp. 171-172.)



                                              7.
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.
v. Superior Court, 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. 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

                                              8.
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.”
                                      DISPOSITION
       The dispositional order of July 11, 2012, is affirmed.




                                             9.
