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In re Edward C.

California Court of Appeal, First District, Fifth Division

January 31, 2014

IN RE EDWARD C., a Person Coming Under the Juvenile Court Law.
v.
Edward C., Defendant and Appellant. The People, Plaintiff and Respondent,

Superior Court of Contra Costa County, No. J0900801, Lewis A. Davis, Judge. (Contra Costa County Super. Ct. No. J0900801).

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COUNSEL

Jonathan Soglin, San Francisco, and Stephanie Clarke, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Ronald E. Niver and Christina vom Saal, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

NEEDHAM, J.

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Edward C. was declared a ward of the juvenile court under Welfare and Institutions Code section 602[1] after he admitted two counts of continuous sexual abuse of a [167 Cal.Rptr.3d 538] child under Penal Code section 288.5. He appeals from an order committing him to the Division of Juvenile Facilities (DJF) after he violated probation and a supplemental petition was found true. Appellant argues the commitment amounts to an ex post facto law because DJF was not an authorized placement for his offenses at the time of their commission. (See U.S. Const., art. I, § 10; Cal. Const., art. I, § 9.) He further argues a DJF commitment was an abuse of discretion in light of the less restrictive alternatives available. We reject both claims and, in light of the valid DJF commitment, strike the probation conditions imposed by the juvenile court.

BACKGROUND

In 2009, when he was 14 years old, appellant was discovered touching his 10-year-old half brother inappropriately. The half brother revealed appellant had been engaging in sexual activity with him and with his 8-year-old sister (appellant's half sister) during the previous two years. The acts occurred several times a week, and included oral copulation and attempted anal and vaginal intercourse.

A petition was filed under section 602 charging appellant with multiple sexual offenses. He was declared a ward of the juvenile court after admitting two counts of continuous sexual abuse of a child under Penal Code section 288.5, between January 10, 2008 and May 7, 2009, in exchange for a dismissal of the other charges. Appellant was granted probation and placed in the residential juvenile sex offenders treatment program at Martins' Achievement Place (MAP), where he remained for the next two and one-half years.

Appellant's progress at MAP was uneven. He had a profound speech problem making it difficult for others to understand him, was believed to be dyslexic, and potentially fell on the autism spectrum. In a probation report filed in September 2010, his behavior was noted to be improving, but a few months later he admitted a probation violation after having consensual sex with his roommate and another resident. He was seen by staff as " struggling" in treatment: minimizing his offenses, falling into a " victim role" when confronted, and avoiding the emotions necessary to develop empathy.

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In a report dated May 6, 2011, the probation officer stated appellant was " fully engaged in treatment and has made a significant amount of progress" since being moved to a different house at MAP. On February 14, 2012, however, appellant admitted he had violated probation because he was not progressing in his program and had failed to complete several of his sex offender treatment assignments. He remained in his placement at MAP and his attitude improved after he began taking prescription antidepressant medication. But problems continued as he persisted in sexualized and aggressive behavior, showing little insight into his issues.

On April 27, 2012, the probation officer filed a notice alleging appellant had violated probation by failing to follow the rules and regulations at MAP. The accompanying report noted that appellant was having difficulties completing his treatment-related assignments and described an incident in which he had been discovered in his room with his pants pulled down below his buttocks in the presence of two roommates. The probation officer recommended a change in placement, as appellant had been at MAP for two and one-half years and made " little to no progress." The probation violation was dismissed contingent on appellant's placement in a different treatment program.

[167 Cal.Rptr.3d 539] Appellant was placed in the Breaking the Cycle (BTC) program in May 2012, but had difficulty following the rules and received several incident reports based on his inappropriate behavior with respect to boundaries, his " grooming" of other residents and staff with sexualized behavior, and his writing in a journal that was sexual in content and included graphics illustrating a penis. A quarterly report on his progress indicated appellant showed little ability or willingness to curtail his inappropriate conduct and did not appear to understand the severity of his situation, focusing more on perceived violations of his own rights.

Appellant turned 18 in November 2012. On November 7, the probation officer filed a notice alleging appellant had violated probation by failing to obey the staff at his court-ordered placement and by failing to fully participate in his sex offender treatment program. On that same date, the district attorney filed a supplemental petition under sections 602 and 778 seeking continuing jurisdiction over appellant and a modification of his placement, as he would not be permitted to remain in the BTC program past his 18th birthday. (See § 607, subd. (a) [juvenile court may retain jurisdiction over ward until age 21].)

The court held a combined hearing on the probation violation and supplemental petition on December 11, 2012. Rebecca Baker, the director of BTC, testified there were three ...


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