Filed 1/15/14 P. v. Cliff B. CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A136992
v.
CLIFF B.,1                                                           (San Mateo County
                                                                     Super. Ct. No. SC074937A)
         Defendant and Appellant.


                                                   INTRODUCTION
         Defendant Cliff B. appeals an order modifying the terms and conditions of his
probation pursuant to Penal Code, section 1203.067,2 which sets forth 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
         1
         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] proceedings”].)
         2
             Further statutory references are to the Penal Code unless otherwise noted.


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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.3
                         FACTUAL AND PROCEDURAL BACKGROUND
       On August 12, 2008, the San Francisco District Attorney filed an information
charging defendant with unlawful sexual intercourse with a drugged person (§ 261, subd.
(a)(3)), and unlawful sexual intercourse with an unconscious person (§ 261, subd.
(a)(4)).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.



       3
        (See Santa Clara County Local Transportation Authority v. Guardino (1995) 11
Cal.4th 220, 230 [“ ‘A fundamental and longstanding principle of judicial restraint
requires that courts avoid reaching constitutional questions in advance of the necessity of
deciding them.’ ”].)
       4
           The facts of the underlying offense are not relevant to the issue on appeal.


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       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.”
       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-


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patient privilege shall be waived, to enable communication between the sex offender
management professionals and probation officer.”
       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
A.     Applicable Prior and 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.” (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.”
       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


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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).)5
B.     Section 3 and the 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

       5
         “ ‘ “The effective date [of a statute] is . . . the date upon which the statute came
into being as an existing law.” [Citation.] “[T]he operative date is the date upon which
the directives of the statute may be actually implemented.” [Citation.] Although the
effective and operative dates of a statute are often the same, the Legislature may
“postpone the operation of certain statutes until a later time.” [Citation.]’ [Citation.]”
(People v. Alford (2007) 42 Cal.4th 749, 753, fn. 2.)

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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.]” (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 (Douglas). The Douglas court
resolved the issue in favor of the similarly-situated appellant 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.” (Douglas,
supra, at pp. 1075–1076.)
       As the Douglas court further explained, “The revised statute was enacted as part of
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


                                               6
statutes governing sex offenses and sex offenders. Although the bill was enacted in
September 2010 as urgency legislation, intended to take effect immediately (id., at § 29),
[fn. omitted] the 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.[6] [Citations.] This interpretation
fulfills the Legislature’s 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.]” (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,



       6
        However, there is a further ambiguity in 1203.067 as to whether probationers,
whose offenses occurred between the effective date of September 9, 2010 and the
operative date of July 1, 2012, would be required to waive the privilege against self-
incrimination and the psychotherapist-patient privilege under subsections (3) and (4)
because those subsections are governed by the date set forth in subdivision (b)—July 1,
2012.

                                              7
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 Collins v. Youngblood (1990) 497 U.S. 37, 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.]”].)
       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


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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.




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