Filed 3/26/14 In re Kyle R. CA1/5

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 FIVE




In re KYLE R., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,

         Plaintiff and Respondent,                                                    A139075

         v.                                                                           (Sonoma County
                                                                                      Super. Ct. No. 35095J)
KYLE R.,

      Defendant and Appellant.
________________________________________/

         The juvenile court declared Kyle R. (the minor) a ward of the court under Welfare
and Institutions Code section 6021 after he admitted committing a lewd act upon a child
(Pen. Code, § 288, subd. (a)). The minor later admitted violating probation and the court
committed him to the Division of Juvenile Facilities (DJF).
         The minor appeals. He contends the commitment to the DJF violates ex post facto
laws (U.S. Const., art. 1, § 10; Cal. Const., art. I, § 9) because it “was unavailable and
carried significant additional penalties not in existence at the time of the original
offense.” In re Edward C. (2014) 223 Cal.App.4th 813 (Edward C.), petition for review
pending, petition filed March 7, 2014 (S216974) and In re K.J. (Mar. 20, 2014, A137787)
1
        Unless otherwise noted, all further statutory references are to the Welfare and
Institutions Code.
                                                             1
[2014 WL 1090149] (K.J.) recently resolved this issue against the minor. We are not
persuaded these cases are wrongly decided and, as a result, we affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
       On several occasions in 2007 and 2008, the 13-year-old minor rubbed the vagina
of a four-year-old and inserted his fingers into her vagina and anus. In the operative
section 602 wardship petition, the People alleged the minor committed continuous sexual
abuse of a child under 14 (Pen. Code, § 288.5, subd. (a)) and committed a lewd act upon
a child (Pen. Code, § 288, subd. (a)). In early 2008, the minor admitted committing a
lewd act upon a child (Pen. Code, § 288, subd. (a)). The court dismissed the other
allegation, declared the minor a ward of the court, and ordered out-of-home placement.
       In November 2012, the probation officer filed a section 777 notice alleging the 19-
year-old minor had violated probation by: (1) dating a 16-year-old girl after being told
not to do so; (2) attending church without a responsible adult after being told not to so;
(3) consuming alcohol; (4) viewing pornography twice a week for the preceding several
weeks; and (5) using a computer at his transitional living placement to view pornography
and access his Facebook account. The minor admitted the violation.
       The court requested and received a section 707.2 diagnostic evaluation, which
recommended committing the minor to Sex Offender Treatment Program at the DJF. The
probation department also recommended committing the minor to the DJF’s Sex
Offender Treatment Program, concluding it was the least restrictive and most
“appropriate” placement that “would keep the community safe, while allowing [the
minor] to continue to focus on his sex offender issues.” The supplemental probation
report noted the minor had “disclosed five other minor female victims . . . . One of the
victims [was] a six year old neighbor [his] mother would babysit in their home, where the
minor admitted anal penetration occurred on two occasions. The minor acknowledged
over the clothing [touching] only with the other four victims. These victims included the
minor’s 8 year old second cousin, the 8 year old daughter of his mother’s friend, the 11
year old daughter of his mother’s boyfriend, and a 7 year old friend of his cousin.”


                                              2
       Following a June 2013 hearing, the court committed the minor to the DJF for a
maximum term of confinement of three years, with credit for 356 days in custody. The
court also ordered the minor to register as a sex offender (Pen. Code, § 290).
                                       DISCUSSION
       The minor contends the ex post facto clauses of the United States and California
Constitutions (U.S. Const., art. 1, § 10; Cal. Const., art. 1, § 9) barred the DJF
commitment because such a commitment was not authorized when he committed his
crime.2 “The state and federal ex post facto clauses have the same meaning and apply to
juvenile wardship proceedings. [Citations.] To fall within the ex post facto provisions,
‘“two critical elements”’ must be met. [Citation.] ‘First, the law must be retroactive.’
[Citation.] Second, ‘the law must have one . . . 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.’ [Citation.]” (Edward C., supra, 223 Cal.App.4th at pp.
824-825.) The question here is whether the DJF commitment constitutes greater
punishment than other commitments available when the minor committed the crime. The
answer is no.
       Edward C. is on point. There, the minor admitted committing continuous sexual
abuse of a child in 2008 and 2009 in violation of Penal Code section 288.5 and the
juvenile court placed him on probation. (Edward C., supra, 223 Cal.App.4th at p. 818.)
In late 2012, and after determining the minor violated probation, the court committed him
to the DJF. (Id. at pp. 820, 821.) On appeal, the minor argued his commitment to the
DJF “amount[ed] to an unconstitutional ex post facto law because such a commitment
was not authorized when he committed his crimes in 2008 through 2009.” (Id. at p. 821.)

2
      See Edward C., supra, 223 Cal.App.4th at pages 821-824 for a thorough summary
of DJF commitments, 2007 juvenile realignment legislation, the California Supreme
Court’s ruling in In re C.H. (2011) 53 Cal.4th 94 (C.H.), and Assembly Bill No. 324
(2011-2012 Reg. Sess.) enacted as urgency legislation effective February 29, 2012, in
response to C.H.
                                              3
He claimed that “in committing him to DJF, the juvenile court retroactively applied the
2012 amendment to section 731, subdivision (a)(4) and inflicted a greater punishment
than was available when he committed his offenses.” (Id. at p. 825.)
       We rejected this argument, concluding there was “no ex post facto problem”
because a DJF commitment was not “greater punishment than the local commitments”
available when the minor committed the offenses. (Edward C., supra, 223 Cal.App.4th
at p. 825.) We reasoned that “[a]lthough a DJF commitment has been described as more
‘restrictive’ than any other disposition for juvenile wards [citation] it does not amount to
greater punishment because it does not increase the time a ward must spend in custody.”
(Ibid.) We also concluded the “sex offender registration” imposed pursuant to Penal
Code section 290 was “a civil regulatory scheme, rather than punishment, for ex post
facto purposes. [Citations.]” As we explained, “[i]f sex offender registration is not
punishment, a DJF commitment is not greater punishment by virtue of a registration
requirement.” (Edward C., supra, 223 Cal.App.4th at p. 827.)
       In addition, we noted “Sections 731 and 733, setting forth the potential
dispositions for a juvenile ward, ‘do not address punishment or penalties for criminal
offenses. Rather, they govern where a juvenile delinquent may serve time for purposes of
rehabilitation.’ [Citation.] Accordingly, courts have concluded the amendments to
sections 731 and 733 under the 2007 realignment legislation, which eliminated DJF as a
possible disposition in most cases, did not amount to a mitigation of punishment.
[Citations.] By a parity of reasoning, the 2012 amendments to sections 731 and 733,
which revived the availability of a DJF commitment for certain sex offenders, cannot be
logically viewed as an increase in punishment for purposes of ex post facto analysis.”
(Edward C., supra, 223 Cal.App.4th at p. 826.)3




3
      Our colleagues in Division Three recently reached the same result in K.J.,
concluding the application to section 371 amendment did not include ex post facto laws
because “no punitive purpose can be discerned beyond the Legislature’s stated objective
in amending section 731.” (K.J., supra, ___ Cal.Rptr.3d ___ [2014 WL 1090149].)
                                              4
         The minor makes arguments identical to the ones rejected in Edward C. and K.J.
Like the minor in those cases, the minor here contends a DJF commitment is “the most
restrictive and punitive option available in juvenile court proceedings” and that he must
register as a sex offender pursuant to Penal Code section 290. The minor also argues “the
DJF commitment was a significant increase in the quantum of punishment available prior
to the enactment of Assembly Bill 324.” Under Edward C. and K.J., the minor’s claims
fail.4
                                      DISPOSITION
         The judgment is affirmed.




4
       We decline the minor’s suggestion — unaccompanied by reasoned argument — to
“find and instruct the juvenile court that he is not subject to a DJF ‘housing’ order” under
section 1752.16. (See Cal. Rules of Court, rule 8.204(a)(1)(B).)
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                                _________________________
                                Jones, P.J.




We concur:


_________________________
Simons, J.


_________________________
Needham, J.




A139075

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