Court: Superior County: Ventura Judge: Don Coleman Super. Ct. No. 2005040811 Ct.App. 2/6
The opinion of the court was delivered by: Cantil-sakauye, C. J.
May a court commit to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF), a juvenile who has not committed an offense described in subdivision (b) of Welfare and Institutions Code section 707? Two statutes govern the answer. Welfare and Institutions Code section 731 authorizes a juvenile court to commit a juvenile who has been adjudged a ward of the court to the DJF if the ward has committed an offense described in subdivision (b) of Welfare and Institutions Code Section 707 "and" the ward "is not otherwise ineligible for commitment to the division under [Welfare and Institutions Code] Section 733." (Welf. & Inst. Code, § 731, subd. (a)(4) (hereafter section 731(a)(4)).)*fn1 Section 733 makes a ward ineligible for commitment to the DJF when "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." (§ 733, subd. (c) (hereafter section 733(c), italics added.)
Here, the juvenile court committed a juvenile ward, C.H., to the DJF based on his commission of a sex offense listed in Penal Code section 290.008, subdivision (c) (hereafter Penal Code section 290.008(c)), although he had never committed an offense listed in section 707, subdivision (b) (hereafter § 707(b)). We conclude a juvenile court lacks authority to commit a ward to the DJF under section 731(a)(4) if that ward has never been adjudged to have committed an offense described in section 707(b), even if his or her most recent offense alleged in a petition and admitted or found true by the juvenile court is a sex offense set forth in section 290.008(c) as referenced in section 733(c). We reverse the judgment of the Court of Appeal, which concluded otherwise.*fn2
Factual and Procedural Background
In October 2005, a witness reported seeing 13-year-old C.H. orally copulating his three-year-old sister S.H. while they were parked in a vehicle outside a grocery store. C.H. admitted his conduct to an investigating officer and told the officer he was in counseling for molesting S.H. a year earlier. C.H. also told the officer he had touched the genitalia of two of his other siblings.
An original petition was filed in juvenile court pursuant to section 602, alleging C.H. had committed a lewd and lascivious act upon S.H. within the meaning of Penal Code section 288, subdivision (a). C.H. admitted the allegation and was declared a ward of the court and placed on probation in January 2006.
Over the course of the next three years, C.H. made little to no progress on probation. He admitted four separate violations of probation for failing to comply with program placement rules.
The first notice of violation of probation was filed, alleging C.H. had failed to comply with program placement rules by failing to obey staff directives, complete required assignments and participate actively in group therapy. C.H. admitted the violations and the court ordered him placed at a new residential program.
C.H. demonstrated the same lack of commitment and progress at his second program placement. In addition, he disclosed having gender identity issues and admitted engaging in mutually consenting sex acts on two occasions with another resident. After three months at this second placement, a second notice of violation of probation was filed, alleging a failure to comply with program placement rules. C.H. admitted the violations and in June 2007 he was placed at a residential program that offered services directed to his gender identity issues.
Approximately 10 months later, after C.H. failed to complete required assignments for his sex offender therapy and routinely pretended not to understand what he was being told in order to avoid doing work, a third notice of violation of probation was filed, alleging C.H.'s continuing failure to comply with program rules and lack of progress. C.H. admitted the violations and ultimately served 90 days in custody at juvenile hall.
C.H. returned from custody to the residential program in September 2008 with a negative and defiant attitude. His continued failure to complete assignments, failing school grades, and lack of progress in his sex offender treatment program resulted in a fourth notice of violation of probation filed in January 2009. C.H. again admitted the violations.
In February 2009, after an extensive disposition hearing, the juvenile court committed C.H. to the DJF in order to enable him to participate in its sex offender program. The court observed that C.H.'s commitment offense, the violation of Penal Code section 288, subdivision (a), was not an offense falling within the provisions of section 707(b),*fn3 but concluded that after three years of failed attempts to help C.H. in three different reputable programs, commitment of C.H. to the DJF was necessary so that he would not have access to other potential victims and could receive the benefit of the DJF's adolescent sexual offender program. C.H. appealed the dispositional order.
The Court of Appeal affirmed. As relevant here, it rejected C.H.'s claim that he was ineligible for commitment to the DJF because his offense under Penal Code section 288, subdivision (a) was not listed in section 707(b). We granted C.H.'s petition for review.