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Name: In re J.S.
Case #: A135214
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 07/08/2013
Subsequent History: Ordered not published

Juvenile could not be “temporarily housed” at DJF because there was no evidence of a contract between DJF and the county. In 2009, 12-year-old J.S. was adjudicated a ward of the court pursuant to Welfare and Institutions Code section 602 based on a petition that alleged lewd and lascivious acts with a child in violation of Penal Code section 288, subdivision (a). Following an unsuccessful period of probation, the court committed J.S. to the custody of DJF for a maximum term of eight years. The Supreme Court then decided In re C.H. (2011) 53 Cal.4th 94, which interpreted sections 731, subdivision (a)(4) and 733, subdivision (c) to prohibit a commitment to DJF when the ward had never committed an offense described in section 707, subdivision (b), even if the ward’s most recent offense was a sex offense set forth in Penal Code section 290.008, subdivision (c). After the decision in C.H., the juvenile court set aside the DJF commitment, and instead ordered that J.S. be “temporarily housed” at DJF pursuant to section 1752.16 (which was enacted in response to C.H.) until he either completed DJF’s Sex Offender Behavioral Treatment or turned 21. J.S. appealed, challenging the court’s order. Reversed. J.S. argued that section 1752.16 contravenes the holding of C.H., that this statute did not actually authorize the court’s order, and that insufficient evidence supported the application of the statute in this case. The appellate court found no merit in the first two challenges. Section 1752.16 and the holding of C.H. are not in conflict. Sections 202, 727, and 731 authorize the housing of a ward at DJF pursuant to section 1752.16 for the purpose of treatment. In this case, however, insufficient evidence supported the application of section 1752.16. By its own terms, the statute requires a contract between the DJF and the county. Here, there was no evidence of such a contract. Absent evidence that the contract existed, the court had no basis for a determination that the disposition allowed by section 1752.16 could be employed in J.S.’s case.

The court did not err by imposing probation conditions, but the conditions as drafted were vague and overbroad. J.S. also contended that the court was not authorized to impose multiple conditions of probation while ordering him to be housed at DJF. The appellate court rejected that argument, finding that the court was authorized to impose conditions of probation because the court was not committing J.S. to the custody of DJF. The court struck several of the conditions of probation as overbroad and vague, including conditions prohibiting the possession of “telecommunications access” to pornographic computer applications, the use of an “open” wireless network, the possession of pornography, and contact with minors. Since the conditions were overbroad, remand was required to determine whether a condition with greater specificity would be reasonable.