(Super. Ct. No. 512000) 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. Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Welfare and Institutions Code section 731 sets forth orders a court may issue when a minor is adjudged a ward of the court including an order to commit the ward to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (Division of Juvenile Facilities), "if the ward has committed an offense described in subdivision (b) of Section 707 and is not otherwise ineligible for commitment to the division under Section 733." (Welf. & Inst. Code, § 731, subd. (a)(4).)*fn1 Section 733 lists categories of wards that shall not be committed to the Division of Juvenile Facilities. Subdivision (c) of that section provides that wards must be excluded from a commitment to the Division of Juvenile Facilities unless they have committed a section 707, subdivision (b) offense or a sex offense listed in subdivision (c) of section 290.008 of the Penal Code.
Appellant, minor Robert M., committed an offense listed in Penal Code section 290.008, but not listed in section 707. In the published portion of our opinion, we find that wards who commit an offense listed in Penal Code section 290.008 may be committed to the Division of Juvenile Facilities even when their offense is not listed in section 707, subdivision (b). In the unpublished portion of our opinion, we find the court did not err in choosing to commit Robert M. to the Division of Juvenile Facilities in lieu of a less restrictive alternative.
PROCEDURAL AND FACTUAL HISTORY
The father of Robert M.'s three-year-old sister found her and 17-year-old Robert M. in bed together. They were both naked and Robert M. was on top of her. When questioned by authorities Robert M. admitted he placed his finger in his sister's vagina.
A section 602 petition was filed accusing Robert M. of committing a lewd and lascivious act with a child under the age of 14 (Pen. Code, § 288, subd. (a)) and sexual penetration of a person who is under 14 years of age and who is more than 10 years younger than the perpetrator (Pen. Code, § 289, subd. (j)).
Robert M. admitted the allegations in the petition. Robert M.'s counsel argued Robert M. could not be committed to the Division of Juvenile Facilities because he had not committed a section 707, subdivision (b) offense. The court disagreed and committed Robert M. to the Division of Juvenile Facilities for a maximum term of 96 months.
I. Commitment to the Division of Juvenile Facilities Based on an Offense Listed in Penal Code Section 290.008 but not in Section 707, Subdivision (b)
Before September 2007, when a minor was adjudged a ward of the court on the ground he had violated the criminal law, the court could consider as an option committing the minor to the Department of the Youth Authority (now the Division of Juvenile Facilities) based on any offense unless the minor was under the age of 11 years or the minor suffered from any contagious infections or other disease which would probably endanger the lives or health of the other inmates. (Former §§ 731 & 733.)
Section 731 and 733 were amended effective September 1, 2007. (Stats. 2007, ch. 175, §§ 19, 22, 37.) "The amendments were enacted as part of chapter 175 of the Statutes of 2007 in order to make 'necessary statutory changes to implement the Budget Act of 2007....' (Stats. 2007, ch. 175, § 38.)" (In re N.D. (2008) 167 Cal.App.4th 885, 891.) "[I]n 2007, policy-makers acted to reduce the number of youth offenders housed in state facilities by enacting realignment legislation which shifted responsibility to the counties for all but the most serious youth offenders." (Ibid.)
"Amended sections 731 and 733 are the parts of this 'realignment legislation' that limit the offenses for which juvenile courts can commit wards to state authorities." (In re N.D., supra, 167 Cal.App.4th at p. 892.) Section 731 now states that the court may commit a ward to the Division of Juvenile Facilities, "if the ward has committed an offense described in subdivision (b) of Section 707 and is ...