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In Re D.R., A Person Coming Under the Juvenile Court Law. v. D.R

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


November 22, 2011

IN RE D.R., A PERSON COMING UNDER THE JUVENILE COURT LAW. THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
D.R., DEFENDANT AND APPELLANT.

(Super. Ct. No. JV117746)

The opinion of the court was delivered by: Nicholson , Acting P. J.

In re D.R.

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 June 2007, the minor D.R. was adjudged a ward of the juvenile court based on the finding he had committed misdemeanor vehicle theft (Veh. Code, § 10851, subd. (a)). The minor was continued as a ward of the court on seven separate occasions for possession of stolen property (Pen. Code, § 496, subd. (a)), three probation violations, felony possession of a firearm by a minor (Pen. Code, § 12101, subd. (a)(1)), attempted burglary (Pen. Code, §§ 664/459), unlawful intercourse with a minor (Pen. Code, § 261.5), and oral copulation with a minor (Pen. Code, § 288a, subd. (b)(1)).

In August 2010, the People filed a subsequent Welfare and Institutions Code section 602*fn1 petition alleging the minor committed assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). The People also filed a section 777 notice of motion regarding a probation violation, alleged the minor committed assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), and battery (Pen. Code, § 242).

The minor admitted both allegations in the section 777 notice, and the juvenile court dismissed the subsequent section 602 petition in the interests of justice. The juvenile court committed the minor to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF), for a term of two years. The minor was committed pursuant to a prior petition, sustained in May 2010, in which the minor admitted committing unlawful sexual intercourse with a minor (Pen. Code, § 261.5) and oral copulation of a minor (Pen. Code, § 288a, subd. (b)(1)), the latter offense of which the juvenile court found to be an offense described in section 707, subdivision (b).

The juvenile court amended the dispositional order nunc pro tunc, vacating the order that the minor register as a sex offender and the finding that Penal Code section 288a, subdivision (b)(1), was an offense described in section 707, subdivision (b).

On appeal, the minor contends his commitment to DJF must be reversed because his violation of Penal Code section 288a, subdivision (b)(1), did not render him eligible for commitment. We affirm.

DISCUSSION

We dispense with recitation of the underlying facts as they are unnecessary to the resolution of this appeal.

The minor was committed to DJF based on the sustained petition of May 2010, specifying Penal Code section 288a, subdivision (b)(1), as the DJF eligible offense.

Section 733 states that a minor is not eligible for commitment to DJF unless he or she has committed an offense listed in subdivision (b) of section 707, or in subdivision (c) of Penal Code section 290.008. (§ 733, subd. (c).) The minor's offenses are not among those listed in section 707, subdivision (b). (See § 707, subd. (b)(1)-(30).) Penal Code section 290.008, subdivision (a) states that a person who has been adjudicated a ward of the court because of the commission of an offense listed in subdivision (c) shall be required to register as a sex offender following his or her release from the Department of Corrections and Rehabilitation. Subdivision (c) lists the various offenses subject to sex offender registration, including Penal Code section 288a, subdivision (b)(1). (Pen. Code, § 290.008, subd. (c)(2).)

In 2006 the California Supreme Court held that the predecessor to Penal Code section 290.008, Penal Code section 290, violated equal protection by requiring juveniles who committed unlawful oral copulation (Pen. Code, § 288a, subdivision (b)(1)) to register as sex offenders while exempting from registration juveniles who committed unlawful intercourse with a minor (Pen. Code, § 261.5). (People v. Hofsheier (2006) 37 Cal.4th 1185, 1192-1193, 1206-1207 (Hofsheier).)

The minor argues Hofsheier and subsequent decisions applying its rationale to prevent registration under Penal Code section 290.008 (see In re J.P. (2009) 170 Cal.App.4th 1292, 1298-1299) preclude a finding that he is eligible for DJF commitment. He asserts the Legislature's intent in enacting section 733, subdivision (c) "is to include as DJF-eligible offenses only the specific class of sex offenses which legally require mandatory juvenile sex offender registration." Claiming the effect of the Hofsheier decision is to render Penal Code section 290.008's reference to Penal Code section 288a, subdivision (b)(1) "null and void," the minor concludes violations of this provision no longer render a minor eligible for DJF commitment.

The minor's contention is essentially a matter of statutory construction. He specifically disclaims any argument that DJF commitment for his offense violates the equal protection clause.

"It is well settled that the proper goal of statutory construction 'is to ascertain and effectuate legislative intent, giving the words of the statute their usual and ordinary meaning. When the statutory language is clear, we need go no further. If, however, the language supports more than one reasonable interpretation, we look to a variety of extrinsic aids, including the objects to be achieved, the evils to be remedied, legislative history, the statutory scheme of which the statute is a part, contemporaneous administrative construction, and questions of public policy. [Citation.]' [Citation.]" (People v. Ramirez (2009) 45 Cal.4th 980, 987.)

The minor's legislative intent argument founders on the timing of section 733. Section 733 was part of a package of legislation enacted in 2007, after Hofsheier was decided in 2006. (Stats. 2007, ch. 175, § 22.) Penal Code section 290.008 was part of a separate legislative package, also enacted in 2007, after Hofsheier. (Stats. 2007, ch. 579, § 16.) We presume the Legislature does not engage in idle acts or create superfluous provisions. (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 634.) Since the Legislature presumably knew about the Supreme Court's decision in Hofsheier but nonetheless included Penal Code section 288a, subdivision (b)(1), in Penal Code section 290.008, we conclude the Legislature intended to allow minors who violate Penal Code section 288a, subdivision (b)(1), to be placed in DJF.

The minor's other argument, that the Hofsheier decision "voids" the reference to Penal Code section 288a, subdivision (b)(1), in Penal Code section 290.008, misconstrues the effect of a statute being declared unconstitutional. A statute found unconstitutional is rendered unenforceable, but the finding does not erase the statute from the books. As our Supreme Court has stated, the argument that "a statute that has been labeled 'constitutionally invalid' is to be treated 'as though it had never been passed,' and hence as not susceptible to judicial reformation, Dombrowski v. Pfister [(1965)] 380 U.S. 479 [14 L.Ed.2d 22] and our own cases reject that view." (Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 624.) If an unconstitutional statute remains on the books to be judicially reformed at a later date, then the Legislature also may rely on an unconstitutional statute for other purposes unrelated to its unconstitutionality.

Hofsheier simply prevented the enforcement of section 290.008's registration requirement, as applied to section 288a, subdivision (b)(1). The Supreme Court's decision did not prevent the Legislature from including section 288a, subdivision (b)(1), as one of the statutes listed in section 290.008 as eligible for DJF commitment. While section 733 refers to Penal Code section 290.008, it does not require the minor to register as a sex offender. Since the minor committed an offense listed in Penal Code section 290.008, subdivision (c), he was eligible for DJF commitment.

DISPOSITION

The order of the juvenile court is affirmed.

We concur: HULL , J. HOCH , J.


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