Opinion
A149215
05-26-2017
In re A.D., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.D., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. J41404)
Appellant A.D. appeals from a juvenile court order committing him to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF). Appellant contends the juvenile court improperly failed to exercise its discretion to determine whether he should be required to register as a sex offender upon his discharge from DJF. He also contends if the sex offender registration requirement is mandatory, it violates equal protection. We conclude under the circumstances of this case, the requirement that appellant register as a sex offender was mandatory. Because the registration requirement does not violate equal protection, we affirm.
DJF, formerly known as the California Youth Authority, is part of the Division of Juvenile Justice, which in turn is part of the Department of Corrections and Rehabilitation. (In re Jose T. (2010) 191 Cal.App.4th 1142, 1145, fn. 1.)
I. FACTS AND PROCEDURAL BACKGROUND
In 2014, at age 16, appellant sodomized his five-year-old half brother. The district attorney filed a Welfare and Institutions Code section 602 petition charging appellant with three felonies. Appellant admitted to a violation of Penal Code section 288, subdivision (a) (Penal Code section 288(a)), lewd act upon a child, and the remaining allegations of the petition were dismissed. At the dispositional hearing, the juvenile court declared wardship and placed appellant on probation. Shortly thereafter, appellant was placed in a group home.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
In December 2015, appellant admitted a violation of probation due to poor behavior in the group home. The court ordered appellant to serve six days at juvenile hall and then return to the group home. Appellant was then placed in a second home after the first group home closed. In March 2016, appellant admitted to violation of probation for being unsuccessfully terminated from the second group home for poor behavior.
After his termination from the second group home, appellant's probation officer recommended commitment to DJF based on appellant's "unwillingness to engage and progress in treatment, the limited time remaining to offer him services, his lack of conformity to programming, and the assessment from [appellant's] psycho-sexual evaluation." The juvenile court asked the probation officer to explore options for alternative placements, but the probation officer was not able to find a group home available to take appellant. At the August 2016 dispositional hearing, the court committed appellant to DJF for a maximum period of four years. The court ordered upon his release, appellant must register as a sex offender.
II. DISCUSSION
A. Mandatory Registration
A minor committed to DJF for a violation of Penal Code section 288(a) is required to register as a sex offender upon his or her discharge. (Pen. Code, § 290.008, subds. (a), (c).) Courts have construed the mandatory sex offender registration requirement to apply only to a minor committed to DJF " 'both after and because of a sex offense adjudication,' not one committed 'only for non-sex offenses, . . . even though he [or she] has previously been adjudicated a ward for sex offenses.' " (Ruelas v. Superior Court (2015) 235 Cal.App.4th 374, 380 (Ruelas), quoting In re Alex N. (2005) 132 Cal.App.4th 18, 24 [construing language in former Pen. Code, § 290, subd. (d)(1) identical to language in current Pen. Code, § 290.008].) Though appellant admitted to a Penal Code section 288(a) offense and was committed to DJF, he argues the court had discretion whether to impose the sex offender registration requirement because he was committed to DJF based on his probation violations, and not "as a direct result of the prior sex offense adjudication."
Appellant's contention he was sent to DJF because of his probation violations and not the underlying sex offense lacks merit. A minor may only be sent to DJF if he or she has been determined a ward of the court under section 602, committed an offense described in section 707, subdivision (b) or Penal Code section 290.008, subdivision (c), and is not otherwise ineligible under section 733. (§§ 731, subd. (a)(4), 733, subd. (c) [minor previously adjudged ward of juvenile court shall not be committed to DJF if most recent offense alleged or found true in any petition is not described in § 707, subd. (b) or Pen. Code, § 290.008, subd. (c)].) "Thus, a DJF commitment must be based on a recent violent offense or sex crime adjudicated in a delinquency petition." (In re Greg F. (2012) 55 Cal.4th 393, 404.)
Courts construing the language in section 733, subdivision (c) prohibiting commitment to DJF if "the most recent offense alleged in any petition" is not a qualifying offense have repeatedly rejected the argument that "probation violations" are "offenses" within the meaning of that statute. (In re Greg F., supra, 55 Cal.4th at pp. 404-405 ["Because section 733[, subdivision ](c)'s commitment limitation depends on the nature of 'the most recent offense alleged in any petition' (italics added), the statute does not bar DJF commitments imposed for probation violations on qualifying offenses."]; In re M.B. (2009) 174 Cal.App.4th 1472, 1476-1477 [rejecting minor's argument he could not be committed to DJF because a probation violation was his "most recent offense" alleged in any petition]; In re J.L. (2008) 168 Cal.App.4th 43, 58.) Similar language in section 731, subdivision (a)(4) allowing commitment only if "a minor is adjudged a ward of the court on the ground that he or she is a person described by Section 602" and "has committed an [eligible] offense" likewise clearly refers to the allegations sustained in a section 602 petition, not probation violations. (See, e.g., In re J.L., at p. 58 [under § 733's plain language, "most recent offense" refers to an offense alleged in a petition filed under § 602, not a probation violation]; see also In re Eddie M. (2003) 31 Cal.4th 480, 506-508 [explaining probation violations alleged in § 777 notice are not criminal offenses as matter of law].) Here, the only offense admitted in a sustained section 602 petition was a violation of Penal Code section 288(a). Accordingly, the court's decision to send appellant to the DJF was necessarily based on his sex offense, triggering the mandatory sex offender registration requirement under Penal Code section 290.008.
Appellant's reliance on In re Alex N., supra, 132 Cal.App.4th 18 to argue the court had discretion not to impose a sex offender registration requirement is misplaced. In Alex N., the minor initially became a ward of the juvenile court based on admissions he engaged in lewd conduct with a minor and oral copulation with a minor, among other offenses. (Id. at pp. 20-21.) The juvenile court subsequently sustained a second wardship petition alleging first degree burglary and other non-sex offenses. (Id. at p. 21.) Because the minor's most recent sustained petition alleged non-sex offenses, the juvenile court had discretion under section 726 to determine whether the current and former petitions should be aggregated. (Alex N., at pp. 24-25.) If the minor was committed only for non-sex offenses, he would not be required to register as a sex offender even though he had previously been determined a ward for sex offenses. (Id. at p. 24.) Here, unlike in Alex N., only one petition has been sustained, so section 726 does not apply. Because appellant's most recent offense was a sex offense for which he was committed to DJF, the sex offender registration requirement is mandatory upon his discharge. B. Equal Protection
Appellant next argues if the registration requirement is mandatory, it is a violation of his equal protection rights because "juveniles who suffer a non-registrable adjudication after an offense that requires registration are not subject to mandatory registration, with the court retaining its discretionary authority to either impose or not impose that requirement." Those like appellant, however, "who simply violate a condition of juvenile probation for conduct that does not amount to a second Section 602 petition, are subject to mandatory registration." Appellant asserts there is no rational distinction between those two classes of juveniles who are similarly situated.
Appellant's equal protection argument is unavailing. The first requirement of an equal protection claim is "a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner." (Ruelas, supra, 235 Cal.App.4th at p. 381.) In determining whether two or more groups are similarly situated, "the pertinent inquiry is whether 'the two groups are sufficiently similar with respect to the purpose of the law in question that some level of scrutiny is required in order to determine whether the distinction is justified.' " (Ibid., italics added by Ruelas.)
The Ruelas court rejected an equal protection claim similar to appellant's, and we find its rationale applicable here. In Ruelas, a minor was required to register as a sex offender though his most recent offenses were non-sex offenses because he was committed to DJF based in part on a prior sex offense. The minor argued the mandatory registration requirement violated equal protection because others with the same juvenile record who were not sent to DJF were being treated differently. (Ruelas, supra, 235 Cal.App.4th at p. 378.) The court disagreed, observing that a juvenile adjudicated of a sex offense is only required to register if he or she is committed to DJF because of that offense. (Id. at p. 382.) Since "Ruelas and others like him were found to have merited commitment to the [DJF] for their sex offenses, whereas those in the other group were not," his equal protection claim failed. (Id. at pp. 382-383.)
Though appellant cited Ruelas in his opening brief in support of his argument the court had discretion not to impose the sex offender registration requirement, the Attorney General did not cite or discuss Ruelas in its opposition, despite its specific and thorough analysis of an equal protection claim like the one raised by appellant here.
Appellant's challenge here fails for the same reason. Appellant proposes two groups: (1) minors like him, who have been adjudicated for a sex offense and subsequently violate probation; and (2) minors who have been adjudicated for a sex offense and subsequently commit a non-registerable offense. Appellant contends the registration requirement is mandatory for the first group and discretionary for the second, but he is incorrect. As discussed above, the registration requirement is mandatory for juveniles in either group only if the court determines DJF commitment for the sex offense is appropriate. (Ruelas, supra, 235 Cal.App.4th at p. 380.) Because appellant has not shown he is being treated differently than a similarly situated group, his equal protection claim fails.
Indeed, the minor in Ruelas, who fell into the category appellant claims is subject to a discretionary registration requirement (those adjudicated of a sex offense and later adjudicated of a non-sex offense) was in fact subject to a mandatory registration requirement because the court found DJF commitment was warranted based in part on his sex offense. (Ruelas, supra, 235 Cal.App.4th at pp. 378, 382-383.) Thus, Ruelas demonstrates that individuals in the group appellant claims are treated differently are in fact treated the same when they are similarly situated.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Margulies, Acting P.J. We concur: /s/_________
Dondero, J. /s/_________
Banke, J.