APPEAL from a judgment of the Superior Court of Stanislaus County. Susan D. Siefkin, Judge. (Super. Ct. No. 512000)
The opinion of the court was delivered by: Detjen, J.
CERTIFIED FOR PUBLICATION
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.*fn1 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.
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
described in Penal Code section 290.008[, subdivision] (c)." (Id. at p. 108.)*fn2
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).)*fn3
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), 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."
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 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.*fn4
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
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 ...