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In re J.S.

California Court of Appeals, First District, Second Division

July 8, 2013

In re J.S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent,
v.
J.S., Defendant and Appellant.

Contra Costa County Superior Court No. J0900388, Hon. Joni Hiramoto, Trial Judge.

Attorneys for Defendant and Under Appointment by the Court of Appeal: Violet Elizabeth Grayson Appellant

Attorneys for Plaintiff and Kamala D. Harris Attorney General of California Respondent: Dane R. Gillette Chief Assistant Attorney General Gerald A. Engler Senior Assistant Attorney General Eric D. Share Supervising Deputy Attorney General Christina Vom Saal Deputy Attorney General.

Lambden, J.

J.S. appeals from the court’s order that he be temporarily housed at the Department of Juvenile Facilities (DJF), pursuant to Welfare and Institutions Code[1] section 1752.16. He challenges the application of section 1752.16 on a number of grounds, including sufficiency of the evidence supporting its use in his case. We conclude that because section 1752.16 requires a contract between the county and DJF and because the record is devoid of evidence of such a contract, the court had no basis for concluding that section 1752.16 could be utilized in J.S.’s case. We reverse the court’s order that J.S. be housed at DJF and remand for further proceedings.

The court’s order also imposed a number of probation conditions on J.S. J.S. contends that the court was not authorized to impose conditions of probation when ordering him to be housed at DJF. We disagree, because J.S. was not committed to the custody of the DJF.

J.S. also challenges certain probation conditions, or subsets of conditions considered together, as unconstitutionally vague or overbroad, or as unreasonable infringement of his constitutional rights. Several of his challenges have merit and we strike or modify the conditions at issue.

BACKGROUND

I. Factual and Procedural Background

The facts of J.S.’s case are not at issue on appeal and we state them only as necessary to explain the procedural history.

J.S. came to the attention of police when, at 12 years of age, neighbors observed him in sexual activity with an eight-year-old boy. On March 12, 2009, a petition under section 602 was filed, alleging that J.S. committed two counts of lewd and lascivious acts with a child, violations of Penal Code section 288, subdivision (a). J.S. admitted one count and was adjudged a ward of the court. He was placed at Gateway Residential Programs, from which he was expelled for failing to comply with the program’s rules. The court sustained a probation violation and placed J.S. at Martin’s Achievement Place, from which he was expelled for noncompliant and disruptive behavior. The court sustained a probation violation and J.S. was returned to Martin’s Place, on condition that he take medication prescribed by a juvenile hall psychiatrist. The placement was terminated after J.S. placed his hands on the hips of an adult female staff member from behind and started pushing his erect penis against her through his clothing. After a contested probation revocation hearing, the court sustained a probation violation.

Following a contested disposition hearing on March 28, 2011, the court continued J.S. as a ward of the court and committed him to the custody of DJF for a maximum term of eight years. J.S. appealed and, on May 22, 2012, this court reversed the commitment to DJF, as required by the holding of In re C.H (2011) 53 Cal.4th 94, 97-98 (C.H.). (In re J.S. (May 22, 2012, A131645) [2012 WL 1854300, nonpub. opn.].) However, on April 9, 2010, the juvenile court had already set aside the DJF commitment. At a contested hearing on that date, the court adopted the recommendations[2] made in a probation department report, dated April 5, 2012, and ordered that J.S. be “temporarily housed” at DJF, pursuant to section 1752.16, to be returned to Contra Costa County “when he satisfactorily completes DJF’s Sex Offender Behavioral Treatment” or in 2016 (J.S’s 21st birthday, at which time the court’s jurisdiction over him as a ward would end).

J.S. timely filed a notice of appeal.

II. Legal Background

In C.H., the California Supreme Court held that “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 [Penal Code] section 290.008(c) as referenced in section 733(c).” (C.H., supra, 53 Cal.4th at pp. 97-98.)

The minor in C.H. had admitted a violation of Penal Code section 288, subdivision (a), and had made little progress in over three years on probation, admitting to four separate violations of probation for failing to comply with program placement rules. (C.H., supra, 53 Cal.4th at p. 98.) The juvenile court “observed that C.H.’s commitment offense... was not an offense falling within the provisions of section 707(b), 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.” (Id. at p. 99, fn. omitted.) A unanimous court reversed the commitment of C.H. to the DJF, observing that “[a] ward’s commission of an offense described in section 707(b) is... a prerequisite for a juvenile court’s authority to order DJF commitment.” (Id. at pp. 102, 109.)

C.H. was published on December 12, 2011. In response to C.H., the Legislature passed, as urgency legislation to take effect immediately, Assembly Bill No. 324 (2011-2012 Reg. Sess.) (AB 324). AB 324 was signed by the governor, and became effective, on February 29, 2012. (See <http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0301-0350/ab_324_bill_20120229_chaptered.pdf>.) The bill amended section 707 to authorize a DJF commitment when the ward “has committed an offense described in subdivision (b) of Section 707 or subdivision (c) of Section 290.008 of the Penal Code, and is not otherwise ineligible for commitment to the division under Section 733.” (AB 324 § 1; § 707, subd. (a)(4).) Thus, a ward similarly situated to C.H., but whose violation of Penal Code section 288, subdivision (a), occurs after February 29, 2012, may be committed to the DJF.

AB 324 also added section 1752.16: “(a) The chief of the Division of Juvenile Facilities, with approval of the Director of Finance, may enter into contracts with any county of this state for the Division of Juvenile Facilities to furnish housing to a ward who was in the custody of the Division of Juvenile Facilities on December 12, 2011, and whose commitment was recalled based on both of the following: [¶] (1) The ward was committed to the Division of Juvenile Facilities for the commission of an offense described in subdivision (c) of Section 290.008 of the Penal Code. [¶] (2) The ward has not been adjudged a ward of the court pursuant to Section 602 for commission of an offense described in subdivision (b) of Section 707. [¶] (b) It is the intent of the Legislature in enacting this act to address the California Supreme Court’s ruling in [C.H].”[3] (AB 324 § 3.)

DISCUSSION

I. Section 1752.16

J.S. challenges the order that he be housed at DJF, pursuant to section 1752.16, on three non-constitutional grounds: (1) section 1752.16 contravenes the holding of C.H.; (2) section 1752.16 does not actually authorize the order of the court; and (3) insufficient evidence supported application of section 1752.16 in his case. We find no merit in the first two challenges, but agree with J.S. on the third.

A. Section 1752.16 is Not in Tension with C.H.

J.S. first contends that “housing” at DJF is simply commitment to DJF under another name, and thus allows what C.H. expressly forbids: “A linguistic sleight-of-hand, creating a verbal distinction without an actual difference, cannot justify a juvenile court in ignoring a controlling opinion of the Supreme Court of California.”

This contention ignores important differences between commitment to DJF, pursuant to section 731, subdivision (a)(4), and a juvenile court order “housing” a ward at DJF, pursuant to section 1752.16.

A juvenile court’s jurisdiction over a ward cannot extend past the ward’s 21st birthday, except in limited circumstances. (§ 607.) Commitment to the DJF, however, can result in detention well beyond a youth’s 21st birthday. (§ 1769.) Because section 1752.16 does not change an affected youth’s status as a ward under the direct supervision of the court, it does not authorize housing beyond a youth’s 21st birthday.

Youths who have committed specified sex offences, including Penal Code section 288, subdivision (a), and who have been committed to the DJF, are required to register as sex offenders upon release from the DJF. (Pen. Code, § 290, subd. (d).) Because section 1752.16 does not commit a youth to the custody of the DJF, but only houses the youth at a DJF facility, application of section 1752.16 does not trigger a requirement for registration as a sex offender.

We conclude that the legal status of a youth who is “housed” at DJF is very different from the legal status of a youth who has been committed to the DJF. The housing permitted by section 1752.16 is not commitment by another name. The conclusion of C.H. was that the law then current did not authorize the commitment of youths such as C.H. and J.S. to the DJF. C.H. does not address the questions posed by section 1752.16, a statute that specifically authorizes the housing of such youths at DJF facilities.

We conclude that section 1752.16 and C.H. are not in tension. The Fifth District recently reached the same conclusion: “a housing order [pursuant to section 1752.16] is not merely a semantically different authorization of the same punishment declared impermissible in... C.H.” (In re Robert M. (2013) 215 Cal.App.4th 1178, 1183 (Robert M.).)

B. Section 1752.16 Creates a Dispositional Alternative

J.S. next argues that we must reverse the court’s order housing him at DJF because section 1752.16 “does not actually authorize any placement of delinquent minors. Rather, it only authorizes the Chief of the [DJF] (with the approval of the Director of Finance) to contract with counties to furnish housing for certain wards. The statutorily authorized placements for delinquent wards remain those set forth in... section 202.”

In Robert M., the minor, like J.S., was a person described in section 1752.16. (Robert M., supra, 215 Cal.App.4th at p. 1182.) The juvenile court committed Robert M. “ ‘to Juvenile Hall... until he reaches the age of 21 with housing at [DJF]’ pursuant to section 1752.16. The juvenile court also stated: ‘[Minor] is to complete sex offender counseling at [DJF].... And upon completion of that sex offender counseling, he is to be returned to the... Juvenile Court for possible modification of his sentence.’ ” (Ibid.)

In Robert M., the minor also contended that &ldquo;the juvenile court lacks statutory authority to authorize housing at DJF because no such dispositional alternative is available under sections 202 and 727.&rdquo; (Robert M., supra, 215 Cal.App.4th at p. 1184.) Section 727, subdivision (a)(1), provides: &ldquo;If a minor is adjudged a ward of the court... the court may make any reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the minor, including medical treatment....&rdquo; Section 731, subdivision (a)(3), permits the court to order a ward to &ldquo;participate in a program of professional counseling as arranged and directed by the probation officer as a condition of continued custody of the ward.&rdquo; The Robert M. court concluded ...


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