P. v. Cliff B.
Filed 1/15/14 P. v. Cliff B. CA1/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and
Respondent,
v.
CLIFF B.,
name="_ftnref1" title="">
Defendant and
Appellant.
A136992
(San
Mateo County
Super. Ct. No. SC074937A)
Introduction
Defendant Cliff B. appeals an order modifying
the terms and conditions of his probation pursuant to
various new probation conditions for registered sex offenders. The order modifying probation required that
he attend an approved sex offender management treatment program (program), pay
for the program subject to his ability to pay and waive any privilege against self-incrimination,
as well as any psychotherapist-patient
privilege, while participating in the program.
Defendant challenges the imposition of these additional conditions of
probation on jurisdictional and federal and state constitutional grounds,
specifically asserting that (1) the modification violated the ex post facto
clauses of the federal and state constitutions;
(2) the modification was in excess of the court’s jurisdiction because no
change in circumstances occurred authorizing such modification; (3) the statutory
presumption of prospectivity under section 3 precludes retroactive application
of section 1203.067 in this case; and, (4) the compulsory waiver of the
privilege against self-incrimination violates the Fifth Amendment and article
I, section 15 of the California Constitution.
We conclude that revised section
1203.067 must be read to apply prospectively under section 3 and, therefore,
cannot be applied retroactively to change the terms and conditions of probation
for defendant. Because we reverse the trial
court’s modification order on that basis alone, we need not address defendant’s
other jurisdictional and constitutional arguments.
Factual and Procedural Background
On August 12, 2008, the
with unlawful sexual intercourse with a drugged person (§ 261, subd.
(a)(3)), and unlawful sexual intercourse with an unconscious person (§ 261,
subd. (a)(4)).
title="">[4] On July 12, 2011,
pursuant to a negotiated disposition, defendant pleaded guilty to rape of a
drugged person. On August 19, 2011, the San Francisco County Superior Court suspended imposition of
sentence and placed defendant on formal probation for a period of three years. As conditions of probation, defendant was
required to register as a sex offender under section 290 and submit to AIDS testing
under section 1202.1. On November 22, 2011, the San Francisco County Superior Court granted the probation
officer’s motion to transfer the case to defendant’s county of residence in San Mateo County.
Subsequently, on September 11, 2012, the probation officer petitioned the San Mateo County Superior
Court to modify the terms and conditions of defendant’s probation pursuant to
sections 1203.2 and 1203.3. The petition
stated: “As of July 1, 2012, the law requires the imposition of specific sex offender
conditions to all individuals on probation who are required to register as a
sex offender pursuant to Section 290 . . . . Pursuant to Section 1203.067(b)(1) . . .
these conditions are to be imposed retroactively to all individuals currently
on probation. This includes those who
have already completed a non certified sex offender program. [¶] The . . . defendant has
been advised of the legal requirement to modify his conditions of probation in
accordance with the law and has requested a hearing before the Court.†The petition also asserts in summary: “This case was jurisdictionally transferred
to San Mateo County on December 30, 2011, with minimal
conditions of probation ordered. There
is no search and seizure, no chemical testing or abstain from alcohol, and no
treatment conditions of any kind imposed. As such, supervision of the defendant and his
progress in the community is limited. He
has been cooperative and compliant with probation appointments and directives.â€
Following filing of the petition to
modify conditions of probation, the trial court appointed counsel for defendant,
set a briefing schedule and calendared the matter for a hearing on October 12, 2012. At the hearing, and after
entertaining argument of counsel, the trial court modified the terms and
conditions of defendant’s probation to include the provisions of amended Penal
Code section 1203.067, subdivision (b). The court stayed the order of modification for
30 days. The order of modification
stated: “1. Pursuant to Section
290.09 of the Penal Code, you are required to participate in and successfully
complete an approved sex offender management treatment program. 2. Pursuant to Section 1203.067 of the
Penal Code, the participation in an approved sex offender management treatment
program will be for a minimum of one year or up to the entire term of
supervised probation, as determined by the sex offender management professional
in consultation with the probation officer and as approved by the Court. 3. Submit to random polygraph
examinations and waive any privilege against self-incrimination and
participation in said polygraph examinations. 4. The psychotherapist-patient privilege
shall be waived, to enable communication between the sex offender management
professionals and probation officer.â€
On November 1, 2012, defendant filed a notice of appeal and on November 8, 2012, filed a petition for writ of supersedeas. On January 23, 2013,
we granted the writ of supersedeas and stayed the trial court’s probation
modification order pending determination of the appeal.
Discussion
Current Statutory Provisions
In July 2008, when defendant committed a felony violation of section
261, former section 1203.067 provided:
“If a defendant is granted probation pursuant to subdivision (a), the
court shall order the defendant to be placed in an appropriate treatment program
designed to deal with child molestation or sexual offenders, if an appropriate
program is available in the county.â€
(Former § 1203.067, subd. (b), added by Stats. 1994, ch. 918, § 1.) Former section 1203.067, subdivision (c)
further provided: “Any defendant ordered
to be placed in a treatment program pursuant to subdivision (b) shall be
responsible for paying the expense of his or her participation in the treatment
program as determined by the court. The
court shall take into consideration the ability of the defendant to pay, and no
defendant shall be denied probation because of his or her inability to pay.â€
During defendant’s term of
probation, the Legislature amended section 1203.067 as part of the Chelsea King
Child Predator Prevention Act of 2010 (Chelsea King Act) (Stats. 2010, ch. 219,
§ 1), to provide, in relevant part:
“(b) On or after July 1, 2012, the
terms of probation for persons placed on formal supervised probation for an
offense that requires registration pursuant to Sections 290 to 290.023,
inclusive, shall include all of the following:
“(1) Persons
placed on formal supervised probation prior to July 1, 2012, shall participate
in an approved sex offender management program, following the standards
developed pursuant to Section 9003, for a period of not less than one year or
the remaining term of probation if it is less than one year. The length of the period in the program is to
be determined by the certified sex offender management professional in
consultation with the probation officer and as approved by the court.
“(2) Persons
placed on formal supervised probation on or after July 1, 2012, shall successfully complete a sex offender management program,
following the standards developed pursuant to Section 9003, as a condition of release
from probation. The length of the period
in the program shall be not less than one year, up to the entire period of
probation, as determined by the certified sex offender management professional
in consultation with the probation officer and as approved by the court.
“(3) Waiver
of any privilege against self-incrimination and participation in polygraph
examinations, which shall be part of the sex offender management program.
“(4) Waiver
of any psychotherapist-patient privilege to enable communication between the
sex offender management professional and supervising probation officer,
pursuant to Section 290.09.
“(c) Any defendant ordered to
be placed in an approved sex offender management program pursuant to
subdivision (b) shall be responsible for paying the expense of his or her
participation in the program as determined by the court. The court shall take into consideration the
ability of the defendant to pay, and no defendant shall be denied probation
because of his or her inability to pay.†(§ 1203.067, subds. (b)-(c), amended by
Stats. 2010, ch. 219, § 17, eff. Sept. 9, 2010.)
The effective date of the amended
statute was September
9, 2010, but its provisions did not become
operative until July 1, 2012. (See § 1203.067, subd. (b).)
Presumption that Statutes Operate Prospectively
“Whether a statute operates
prospectively or retroactively is, at least in the first instance, a matter of
legislative intent. When the Legislature
has not made its intent on the matter clear with respect to a particular
statute, the Legislature’s generally applicable declaration in section 3
provides the default rule: ‘No part of
[the Penal Code] is retroactive, unless expressly so declared.’ We have described section 3, and its identical
counterparts in other codes (e.g., Civ.Code, § 3; Code Civ. Proc., § 3),
as codifying ‘the time-honored principle . . . that in the absence of
an express retroactivity provision, a statute will not be applied retroactively
unless it is very clear from extrinsic sources that the Legislature . . . must
have intended a retroactive application.’ [Citation.] In applying this principle, we have been
cautious not to infer retroactive intent from vague phrases and broad, general
language in statutes. [Citations.] Consequently, ‘ “a statute that is ambiguous with respect to retroactive application is
construed . . . to be unambiguously prospective.†’ [Citations.]â€
(People v. Brown (2012) 54
Cal.4th 314, 319–320 (Brown), italics
added.)
Applying these principles to the
statute at bar, the parties reach different conclusions on the retroactivity
issue. The People contend the statute is
unambiguous as to legislative intent, asserting that because the statute
specifically states probationers placed on probation before July 1, 2012 must participate in approved sex offender management treatment programs,
the statute must be construed to apply retroactively. Defendant, on the other hand, asserts that
viewed in light of section 3’s presumption against retroactivity, the most
tenable construction is that revised section 1203.067 applies to all
probationers whose offenses occurred on or after September 9, 2010.
Our colleagues in Division 2 of this
court recently addressed this legal conundrum in People v. Douglas (2013) 220 Cal.App.4th 1068 (
in that case, concluding the People’s interpretation “completely ignores both
section 3’s presumption of prospectivity and the context in which the amendment
of section 1203.067 came about.†(
As the
Assembly Bill No. 1844 (2009–2010 Reg. Sess.), the Chelsea King Child Predator Prevention
Act of 2010 (Chelsea’s Law) (Stats. 2010, ch. 219), which altered numerous statutes
governing sex offenses and sex offenders. Although the bill was enacted in September
2010 as urgency legislation, intended to take effect immediately (
section 1203.067 amendments did not become operative until July 2012, almost
two years later. The apparent reason for
this delayed implementation is reflected in other stated requirements of the
bill (see, e.g., § 9003 [requiring development and updating of standards
for certification of sex offender management professionals and programs]),
which were prerequisites to application of the new provisions of section
1203.067. There is nothing in this
legislative history that provides ‘ “ ‘a clear and compelling
implication’ †’ that the Legislature intended the revised statute to
apply retroactively. [Citation.] [¶] Given this context, the most
reasonable interpretation of the language of amended section 1203.067,
subdivision (b), regarding ‘[p]ersons placed on formal probation prior to July
1, 2012,’ is that, for those probationers whose offenses occurred between the
effective date of September 9, 2010, and the operative date of July 1,
2012, their participation in—though not necessarily completion of—‘an approved sex
offender management program’ would be required.[
intention that this portion of the urgency legislation would take effect
immediately upon enactment, applying to probationers whose offenses occurred on
or after that date, even though its provisions could not actually be
implemented until July 1, 2012. [Citations.]â€
(Douglas, supra, 220
Cal.App.4th at p. 1076.)
We agree with the analysis
propounded by the Douglas court on this point and conclude the
statutory language does not clearly indicate a legislative intent that section
1203.067 is to be applied retroactively to probationers whose crimes occurred
before its effective date. Moreover, the
People fail to identify anything in the legislative history, and our research
revealed nothing, which clearly indicates the statute is intended to apply
retroactively. (See Brown, supra, 54 Cal.4th at pp. 319–320.)
Furthermore, whereas we do not reach
defendant’s Fifth Amendment claim, we acknowledge that a retroactive
application of the statute requiring defendant to waive his privilege against
self-incrimination (see § 1203.067, subd. (b)(3)), would arguably
implicate the federal and state Constitutions’ prohibition against ex post
facto laws (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art.
I, § 9) by making punishment for the crime more burdensome, (see
41–42 [retrospective statute making punishment for a crime more burdensome is
an ex post facto law]). This
constitutional concern further supports a finding of nonretroactivity under
section 3. (See People v. Superior Court (Romero)
(1996) 13 Cal.4th 497, 509 [“ ‘If a statute is susceptible of two
constructions, one of which will render it constitutional and the other
unconstitutional in whole or in part, or raise serious and doubtful
constitutional questions, the court will adopt the construction which, without
doing violence to the reasonable meaning of the language used, will render it
valid in its entirety, or free from doubt as to its constitutionality, even
though the other construction is equally reasonable. [Citations.] The basis of this rule is the presumption that
the Legislature intended, not to violate the Constitution, but to enact a valid
statute within the scope of its constitutional powers.’ [Citations.]â€].)
In sum, there is nothing in either
the language of the statute or its legislative history clearly indicating a
legislative intent for revised section 1203.067 to be applied retroactively to
probationers whose crimes occurred before its effective date. (See Brown,
supra, 54 Cal.4th at pp. 319–320; Alford,
supra, 42 Cal.4th at p. 754.)
Moreover, to construe the statute as applying to those probationers would
raise serious constitutional questions under the federal and state ex post
facto clauses. Therefore, in keeping with
the mandate of section 3, revised section 1203.067 must be construed as “ ‘ “unambiguously
prospective†’ †(Brown, supra,
54 Cal.4th at p. 320), applying to probationers whose crimes were committed on
or after the statute’s effective date of September 9, 2010. Defendant’s offense occurred before the effective
date of the statute. Therefore, the
provisions of revised section 1203.067 were improperly applied to him and must
be stricken.
Disposition
The trial court’s order modifying
the conditions of defendant’s probation is reversed and the matter remanded for
further proceedings consistent with this opinion. The writ of supersedeas is hereby dissolved
with immediate effect.
______________________
Becton, J.*
We concur:
______________________
Dondero, Acting P.J.
______________________
Banke, J.
* Judge of the
Contra Costa County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
At defendant’s request, and due to the nature of the underlying offenses of
which he was convicted, we do not use his full name in this opinion. (See In
re E.J. (2010) 47 Cal.4th 1258, 1267, fn. 4, [in “a departure from [its]
usual practice (see Cal. Style Manual (4th ed. 2000) § 5:9, pp. 179–180),†our
Supreme Court granted petitioners’ request to not disclose their identities,
“given the particular subject matter of [the] proceedingsâ€].)
Further statutory references are to the Penal Code unless otherwise noted.
