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In re K.J.

California Court of Appeals, First District, Third Division

March 20, 2014

In re K.J., a Person Coming Under the Juvenile Court Law.
K.J., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,

Contra Costa County Super. Ct. No. J0801378 Honorable Lois Haight.

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

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


Siggins, J.

K.J. was committed to the Division of Juvenile Facilities (DJF) after several failed alternative dispositions. His principal contention is that his placement violated the prohibition against ex post facto laws because he was not eligible for a DJF commitment when he was adjudicated a ward of the court, and he was placed there under an amendment to Welfare and Institutions Code section 731 that was enacted after his adjudication. He also argues that the placement order must be reversed because the statutory amendment was not intended to apply retroactively. We conclude that the amendment was intended to be retroactive. We further conclude that application of the amendment to permit commitment of wards like K.J. in the DJF

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was not an ex post facto violation because there is nothing so punitive in the statute’s purpose or effect in K.J.’s case that would warrant our disregard of the Legislature’s express intent in enacting it. We therefore affirm the disposition.


A. K.J.’s Case

K.J. was born in July 1995. In May 2008, when he was 12 years old, he molested his five-year-old brother. K.J. said that he had been molested by his father, and did not realize that his father’s conduct was wrong. In June 2008, a Welfare and Institutions Code section 602 petition was filed alleging the May 2008 offense.[1] In August 2008, K.J. admitted a lewd act on a child under age 14 (Pen. Code, § 288, subd. (a)), was adjudged a ward, and was put on probation in the custody of his grandparents. In October 2008, his grandparents reported that they could not control him, and he was placed in Martins' Achievement Place. In June 2010, after sexual activity at Martin’s, he was placed at Gateway Residential Programs. In February 2012, after sexual activity at Gateway, he was placed at Teen Triumph, a third residential juvenile sex offender program, where he again engaged in sexual conduct. In August 2012, he was detained in juvenile hall. In October 2012, he admitted violating probation at Teen Triumph.

The case proceeded to a contested disposition. The probation department (department) recommended that K.J. be committed to the DJF. He had “proven himself to be not amenable to treatment in placement, ” and appeared to be “a serial predatory sex offender.” He had “progressed from intimidating a younger resident at Martin’s Achievement Place to engage in sexual conduct to... more recent incidents of... ‘persuading’ younger... vulnerable residents to engage in sexual conduct.” Gateway advised that it would not readmit K.J. because “we can not guarantee the safety of our more vulnerable clients if [he] were to return.” The department opined that K.J. needed “a long-term juvenile sex offender program in a custodial setting with the [DJF].”

K.J.’s counsel filed a brief arguing that the prohibition against ex post facto laws precluded K.J. from being committed to the DJF. Counsel filed a declaration stating that qualified therapists from the San Francisco Forensic Institute and A Step Forward, Inc., a Contra Costa County program, were available to provide sex offender treatment at the county’s Youthful Offender

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Treatment Program (YOTP), a locked facility housed in one unit of the juvenile hall. Counsel stated that ten of the 30 rooms at the YOTP housed only one ward.

The department briefed the ex post facto issue, and objected to placing K.J. at the YOTP. The department stated that no sex offenders were housed there, and YOTP staff were not trained to provide sex offender treatment. The department believed that K.J.’s behavior “could place him at risk of physical harm in the YOTP, ” and threaten the more vulnerable YOTP residents. At the December 2012 dispositional hearing, county counsel noted that K.J. had failed in three residential treatment programs, and reported that all of the other residential programs used by the department were refusing to admit him.

The court followed the department’s recommendation and committed K.J. to the DJF for a maximum term of eight years. The judge stated: “I actually have a great concern about this minor.... I feel he’s a serious predator serial sex offender.... I feel he’s a danger in the community. And I also feel he’s a danger to programs. [¶]... [¶] I think he is very dangerous. I don’t think there’s anything other than [DJF] that would protect the community and have the facilities to rehabilitate him.”

B. Realignment Legislation

In 2007, realignment legislation was enacted to transfer greater responsibility for wards to county authorities. (In re N.D. (2008) 167 Cal.App.4th 885, 891 [84 Cal.Rptr.3d 517] (N.D.).) “One aspect of [the realignment legislation] was to ‘stop the intake [to DJF] of youthful offenders adjudicated for non-violent, non-serious offenses (non-707 b offenses)....’ ” (In re Greg F. (2012) 55 Cal.4th 393, 409 [146 Cal.Rptr.3d 272, 283 P.3d 1160].) Section 731 was amended to provide that a ward could be committed to the DJF “if the ward has committed an offense described in subdivision (b) of Section 707 and is not otherwise ineligible for commitment to the division under Section 733.” (Former § 731, subd. (a)(4); see N.D., supra, 167 Cal.App.4th at p. 890.) Section 733 was amended to prohibit a DJF commitment if “the most recent offense alleged in any petition and admitted or found to be true by the court is not described in subdivision (b) of Section 707, unless the ...

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