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Name: In re Robert M.
Case #: F064841
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 04/29/2013

Housing of minor at the Division of Juvenile Facilities (DJF) following enactment of Welfare and Institutions Code section 1752.16 is permissible and does not violate either ex post facto or equal protection considerations. Minor entered no contest admissions to a Welfare and Institutions Code section 602 petition alleging violations of Penal Code sections 288, subdivision (a), and 289, subdivision (j), and was initially declared a ward and committed to DJF. After the Supreme Court issued its opinion in In re C.H. (2011) 53 Cal.4th 94, the juvenile court’s commitment order was reversed. On remand, the court committed minor to juvenile hall, with housing at DJF pursuant to section 1752.16, ordered him to complete sex offender counseling and, upon completion, to be returned to juvenile court for possible sentence modification. On appeal, minor challenged section 1752.16 and the order for his housing. Affirmed. In June 2012, section 1752.16 was enacted as emergency legislation to address In re C.H. It states that the county may enter into contracts with DJF to provide housing of the ward, who prior to In re C.H., was committed to DJF for an offense listed in Penal Code section 290.008, subdivision (c), but had not committed an offense listed in section 707, subdivision (b). The court concluded that section 1752.16 and the court’s order were not a means to avoid In re C.H. because a commitment to juvenile hall with housing at DJF is different from a direct commitment to DJF. With the latter, the minor is required to register as a sex offender whereas there is no such requirement for the minor committed to juvenile hall for the same offenses. With the commitment to juvenile hall, the decision regarding release from custody remains with the court whereas with the direct commitment, the decision to release is with the Juvenile Parole Board. The court also found no violation of stare decisis principles because section 1752.16 satisfies the requirements of In re C.H. Section 1752.16 does not violate equal protection guarantees even though it permits, but does not require, individual counties to contract with DJF for housing because counties may separately determine where to house wards as well as what programs to impose. Finally, there is no ex post facto violation because there is no increase in punishment.