Opinion
C067010
01-31-2012
In re D.R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.R., Defendant and Appellant.
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No.
JV117746)
OPINION ON
REHEARING
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 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).
Undesignated statutory references are to the Welfare and Institutions Code.
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 because the California Supreme Court ruled that the equal protection clause precluded subjecting a minor to sex registration for that offense. (See People v. Hofsheier (2006) 37 Cal.4th 1185, 1192-1193, 1206-1207; In re J.P. (2009) 170 Cal.App.4th 1292, 1298-1299.)
In our original opinion, dated November 22, 2011, we ruled that whether the minor's offense was subject to Penal Code section 290.008 sex offender registration was not relevant to whether the offense rendered him eligible for DJF. 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 offense, Penal Code section 288a, subdivision (b)(1), was not one of the offenses listed in section 707, subdivision (b). However, since the offense was listed in Penal Code section 290.008, subdivision (c), we concluded the minor was eligible for DJF.
Subsequent to our opinion, the California Supreme Court decided In re C.H. (2011) 53 Cal.4th 94 (C.H.), which held that a minor was eligible for DJF "only if the ward has committed an offense listed in section 707(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(b) or a sex offense described in Penal Code section 290.008(c)." (Id. at p. 108.)
We granted rehearing on our own motion and granted the minor's motion for supplemental briefing on C.H.
The parties' original briefs did not mention the pending C.H. case and did not address whether the minor would be eligible for DJF only if he committed an offense listed in section 707, subdivision (b)).
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Since the minor's offenses are not among those listed in section 707, subdivision (b), the juvenile court was not authorized to commit him to DJF. (See C.H., supra, 53 Cal.4th at p. 108.)
DISPOSITION
The dispositional order committing the minor to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities is reversed. The matter is remanded to the juvenile court to conduct a new dispositional hearing.
NICHOLSON, Acting P. J.
We concur:
HULL, J.
HOCH, J.