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People v. Douglas M.

California Court of Appeal, First District, Second Division

October 24, 2013

THE PEOPLE, Plaintiff and Respondent,
v.
DOUGLAS M., Defendant and Appellant.

San Mateo County Super. Ct. No. SC068572A, Honorable John L. Grandsaert Judge.

Attorneys for Appellant: First District Appellate Project Jonathan Soglin, Executive Director J. Bradley O’Connell, Asst. Director

Attorneys for Respondent: Kamala D. Harris, Attorney General Dane R;. Gillette, Chief Asst. Atty. Gen. Gerald A. Engler, Sr. Asst. Atty. Gen. Laurence K. Sullivan, Supervising Dep. A.G. Rene A. Chacon, Supervising Dep. A.G.

KLINE, P.J.

Douglas M. appeals from an order modifying his probation, pursuant to amended Penal Code section 1203.067, [1] which sets forth various new probation conditions for registered sex offenders.[2] Because the presumption of prospectivity of Penal Code statutes, mandated by section 3, cannot be rebutted, we conclude that the provisions of revised section 1203.067 may not be applied retroactively to change the terms and conditions of probation for probationers who committed their offenses before the effective date of the amendment. As appellant’s offenses occurred well before that date, the trial court improperly modified the terms and conditions of his probation to include the new provisions.

PROCEDURAL BACKGROUND

On May 10, 2006, appellant was charged by complaint in Shasta County Superior Court with one count of continuous sexual abuse of a child (§ 288.5, subd. (a)), and one count of lewd or lascivious acts on a child under age 14 (§ 288, subd (a)). The offenses allegedly were committed between July 2005 and March 2006.[3]

On September 8, 2006, pursuant to a negotiated disposition, the complaint was amended and appellant pleaded guilty to two counts of lewd and lascivious acts on a child under age 14.

On December 14, 2006, the trial court imposed a total sentence of 10 years in state prison, suspended execution of sentence, and placed appellant on formal probation for seven years.

On April 2, 2009, Shasta County transferred probation supervision to San Mateo County, where appellant now lives.

On October 19, 2012, over defense counsel’s objections, the trial court modified the terms and conditions of appellant’s probation, pursuant to amended section 1203.067. The court stayed the modification order for 30 days.

On November 1, 2012, appellant filed a notice of appeal from the probation modification order.

On January 23, 2013, we granted appellant’s petition for a writ of supersedeas and stayed the trial court’s probation modification order pending resolution of his appeal.

DISCUSSION

Appellant contends the trial court erred when it applied the provisions of amended section 1203.067 to modify the terms ...


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