Filed 9/19/13 In re F.E. CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE
OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re
F.E., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
F.E.,
Defendant and
Appellant.
F065887
(Super.
Ct. No. 08CEJ600356-1V)
APPEAL from
a judgment of the Superior Court of
County. Rosendo Peña, Jr., Judge.
Hassan
Gorguinpour, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Jeffrey
Grant, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant,
F.E., appeals from a juvenile court disposition order in his Welfare and
Institutions Code
title="">[1] section 602 proceeding. Appellant contends the order directing that
he be housed at the Department of Corrections and Rehabilitation, Division of
Juvenile Facilities (DJF), pursuant to section 1752.16 violated constitutional
ex post facto principles. We disagree
and affirm.
BACKGROUND
In September 2008, appellant, who
was then a minor, admitted an allegation set forth in a juvenile wardship
petition (§ 602) that he committed a violation of Penal Code section 288,
subdivision (a) (committing a lewd or lascivious act against a child under the
age of 14). In October 2008, the
juvenile court adjudged appellant a ward of the court and placed him under the
supervision of the probation officer for suitable placement. Later that month, appellant was placed in a
group home.
In January
2010, the probation officer filed a petition under section 777 alleging
appellant violated probation by absconding from the group home. In February 2010, this petition was amended
to add an allegation that appellant was in possession of a firearm, and
appellant admitted both allegations. At
the disposition hearing in March 2010, the court found that appellant had
failed on formal probation, ordered him committed to DJF, and, in the exercise
of its discretion under section 731, subdivision (c), set appellant’s maximum
term of physical confinement (MTPC) at six years.
In December 2011, our Supreme Court
held, in In re C.H. (2011) 53 Cal.4th
94, that a juvenile court may only commit a ward to DJF “if the ward ... committed an offense listed in section 707[,
petition and admitted or found to be true by the juvenile court [was] either an
offense enumerated under section 707[, subdivision] (b) or a sex offense
described in Penal Code section 290.008[, subdivision] (c).†(Id.
at p. 108, italics added.)
A violation of Penal Code section
288, subdivision (a), the offense of which appellant stands adjudicated, was
not at the time appellant was committed to DJF, and is not now, listed in
section 707, subdivision (b) (hereafter,
section 707(b)).
In February 2012, section 1752.16
was enacted as urgency legislation “to address the California Supreme Court’s
ruling in In re C.H.[,
added.) Section 1752.16, subdivision (a)
provides that DJF “may enter into contracts with any county of this state for
[DJF] to furnish housing to a ward who was in the custody†of DJF on the date
and who was committed to DJF for the commission of an offense listed in Penal
Code section 290.008, subdivision (c), but who had not committed an offense
listed in section 707(b). Penal Code section
288, subdivision (a) is among the offenses listed in Penal Code section
290.008, subdivision (c).
On July 11,
2012, the juvenile court, in response to an ex parte application of the
probation officer, set a hearing for July 19, 2012, for “Recall of DJF
Commitment/ Alternative Disposition.â€
At that hearing, the court noted that the matter was before it for a new
disposition hearing pursuant to In re
C.H., supra, 53 Cal.4th 94, found
that appellant was improperly committed to DJF because the instant offense was
not among the offenses listed in section 707(b), and vacated the previous
disposition order. The court continued
the disposition hearing to August 6, 2012, and on that date, adjudged appellant
a ward of the court, placed him under the supervision of the probation officer
until further order of the court with legal jurisdiction to end on June 5,
2014, set appellant’s MTPC at eight years, and ordered, pursuant to section
1752.16, that appellant be housed at DJF for purposes of continued sex offender
treatment. The instant appeal followed.
DISCUSSION
As indicated above, appellant
contends the court’s order that he be housed at DJF for purposes of continuing
his participation in the sex offender treatment program pursuant to section
1752.16 violates state and federal constitutional
The state and federal ex post facto
laws have the same meaning. (
Cal.4th 158, 171-172 (John L.).) “[N]o statute falls within the ex post facto
prohibition unless ‘two critical elements’ exist.†(Id.
at p. 172.) “First, the law must be
retroactive.†(Ibid.) Section 1752.16 is
applicable to appellant solely because he was, prior to the effective date of
that section, the subject of a section 602 petition charging a crime listed in
Penal Code section 290.008, subdivision (c), and was serving a commitment to
DJF on the date In re C.H.,
prohibited ex post facto law is met. (
1178, 1185-1186 (Robert M.).)
The second requirement for a
prohibited ex post facto law is that the law must have one or more of the
following four effects: it makes
criminal acts that were innocent when done; it makes the crime greater or more
aggravated than it was when committed; it inflicts a greater punishment for the
crime than was available when the crime was committed; or it alters the rules
of evidence or the required proof for conviction. (John
L., supra, 33 Cal.4th at p. 172 & fn. 3.)
Appellant contends section 1752.16
violates the third of these prohibitions; that is, he contends section 1752.16
increases the punishment that could have been imposed upon him at the time he
committed the instant offense. We
disagree. We held to the contrary in
here. As we explained in
section 1752.16, a ward could be confined in a variety of juvenile institutions
run by the county (§ 730, subd. (a)) and could be ordered to ‘participate in a
program of professional counseling as arranged and directed by the probation
officer as a condition of continued custody of the ward.’ (§ 731, subd. (a)(3).) The mere fact that the state created an
additional resource to provide sexual offender treatment, and that this
resource was in a different location than the existing local programs, does not
constitute an increase in the punishment authorized for purposes of the ex post
facto clauses. (See People v. Cruz (2012) 207 Cal.App.4th 664, 672, fn. 8 [serving
sentence locally is not lesser punishment than serving same length sentence in
state prison for ex post facto purposes].)
“In addition, for wards of minor’s
age, section 208.5, both before and after the enactment of section 1752.16,
permitted a ward who is committed to juvenile hall to be housed in the county
jail. (See In re Ramon M. (2009) 178 Cal.App.4th 665, 673.) It cannot realistically be argued that housing
at DJF for the limited purpose of successful completion of the sexual offender
program is a greater punishment than a fixed term of commitment to juvenile
hall, with housing at the county jail, where the ward has no ability to
effectuate his release through completion of a counseling program.†(Robert
M., supra, 215 Cal.App.4th at p.
1186.) Accordingly, this court
held: “Because it does not authorize
punishment of a type or duration greater than permitted before its enactment,
section 1752.16 is not a prohibited ex post facto law.†(Ibid.)
Appellant asks that we reconsider
this holding. Addressing the first of
the reasons for the holding in Robert M. discussed
above, he takes issue with this court’s conclusion that “[t]he mere fact that
the state created an additional resource to provide sexual offender treatment,
and that this resource was in a different location than the existing local
programs, does not constitute an increase in the punishment authorized for
purposes of the ex post facto clauses.â€
(Robert M.,
of punishment than the other placement resources available in the delinquency
system†because in that system DJF “stands at the pinnacle as the most
restrictive and most punitive option,†and housing a minor at DJF exposes the
minor to “the most severe restrictions available under the Juvenile Court Lawâ€
and “the most hardened and serious juvenile offenders.â€
We disagree. Our conclusion that a change in the place
where appellant receives his sex offender treatment does not constitute a
change in the level of punishment he receives is not affected by where DJF
stands in the hierarchy of possible dispositions for juvenile offenders or the
nature of the population at DJF. (But
see In re J.S. (2013) 217 Cal.App.4th
924, 945, 946 [reversing order that minor be housed at DJF pursuant to section
1752.16 because evidence insufficient to establish existence of contract
between county and DJF; declining to reach ex post facto claim; remanding for
consideration of proper disposition; noting that “[t]he California Supreme
Court has regularly noted that a DJF commitment is more restrictive than any
other disposition available to the juvenile court,†and “nothing in section
1752.16 suggests that a juvenile ward who is ‘housed’ at DJF will have
day-to-day conditions of detention that differ in any way from those who are
committed to the custody of DJFâ€; and indicating that if the juvenile court
found it necessary to decide the ex post facto question, “the question before
it will be whether detention at a DJF facility poses a significant risk of
increasing the measure of punishment as compared to detention at a juvenile
hallâ€].)
Appellant also challenges this
court’s second reason for rejecting the ex post facto claim, i.e., that “[i]t
cannot realistically be argued that housing at DJF for the limited purpose of
successful completion of the sexual offender program is a greater punishment
than a fixed term of commitment to juvenile hall, with housing at the county
jail, where the ward has no ability to effectuate his release through
completion of a counseling program.†(
He raises two points in this regard.
First, he argues that the commitment order in the instant case could be
longer than a fixed-term commitment in county jail because to obtain release,
he must satisfy DJF personnel that he has completed his sex offender treatment
and thus “[t]he length of his confinement depends on the beliefs of
others.†This factor notwithstanding,
however, in our view, because appellant retains the ability to affect the date
of his release, housing at DJF cannot be said to be an increase in punishment.
Second, he argues “it is not clear
DJF is less restrictive than [county] jail†because county jail “houses
lower-level offenders and individuals awaiting trial†whereas “DJF has long
been seen as the most punitive option and the location of the most serious
offenders.†We disagree. Again, the difference in population between
county jail and DJF, if there be a difference, does not lead to the conclusion
that housing at DJF for the purpose of completing sex offender treatment
constitutes an increase in punishment.
Finally, appellant argues the instant
case is distinguishable from Robert M.,
because at appellant’s first disposition hearing in March 2010, the court set
appellant’s MTPC at six years but the court’s August 2012 order included an
MTPC of eight years. Appellant argues: “This retroactive increase in the maximum
term of confinement is an increase in punishment within the meaning of the ex
post facto clause.†There is no merit to
this contention. The setting of the MTPC
is governed by section 730.6. There has
been no change in this statute in the time since the commitment of the instant
offense. The eight-year MTPC set in
August 2012 would have been authorized by statute in 2010. Therefore, the setting of the MTPC at eight
years was not a retroactive application of any statute and thus did not
constitute an ex post facto violation.
DISPOSITION
The judgment is affirmed.
name="_ftn1" title="">* Before Gomes, Acting P.J., Kane, J.,
and Detjen, J.
name="_ftn2" title="">[1] Except
as otherwise indicated, all further statutory references are to the Welfare and
Institutions Code unless otherwise specified.
