Opinion
F071941
09-26-2017
In re DUSTIN A., On Habeas Corpus.
Tim Ward, District Attorney, Dan Underwood, Barbara J. Greaver, and Jennifer Fultz, Deputy District Attorney, for Appellant. Heather MacKay, under appointment by the Court of Appeal, for Respondent Dustin A.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from an order of the Superior Court of Tulare County. Valeriano Saucedo, Judge. Tim Ward, District Attorney, Dan Underwood, Barbara J. Greaver, and Jennifer Fultz, Deputy District Attorney, for Appellant. Heather MacKay, under appointment by the Court of Appeal, for Respondent Dustin A.
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Dustin A. is a former ward of the juvenile court who is subject to a requirement, currently stayed, to register as a sex offender because he was once found to have committed a violation of Penal Code section 647.6, annoying or molesting a child, and was subsequently committed to the California Youth Authority (CYA), now known as the Division of Juvenile Justice (DJJ). In 2010, the superior court granted Dustin's writ petition asking the court to strike the section 647.6 adjudication from a 1995 order that had cited it as one basis for his commitment to CYA. The purpose and effect of the superior court's 2010 order was to relieve Dustin of the obligation to register as a sex offender, and also to remove several sex-offense-based conditions of parole to which he was subject following some adult convictions of unrelated offenses. After an appeal by the People, we disagreed with the superior court's reasoning and reversed the order, but kept the stay in place and remanded to allow the court to consider several additional grounds for relief Dustin had advanced. (In re Dustin A. (July 6, 2011, F060297) [nonpub. opn.].)
The superior court has again ruled on Dustin's petition. Dustin is no longer on parole, and the sole issue before the superior court was whether the requirement to register as a sex offender should be applied to him. The court ruled that it should not. The sole basis for that ruling was that Dustin was denied equal protection of the law because, under the pertinent statutes as they are today, a juvenile ward in his situation would not be committed to DJJ and consequently would not be required to register as a sex offender. The People again appeal. The equal protection issue is the only one addressed in the parties' briefs.
We will reverse. The differences between the way in which the juvenile court treated Dustin in 1995, and the way in which it would treat a similarly-situated minor today, are not as great as Dustin supposes. Today, there are still means available to the juvenile court to commit such a minor to DJJ, and consequently to trigger the sex-offender-registration requirement. Specifically, as we will explain, the juvenile court today could employ the procedure approved by our Supreme Court in In re Greg F. (2012) 55 Cal.4th 393 (Greg F.). Under the particular circumstances of this case, that procedure could result in a juvenile with the same record as Dustin being committed to DJJ. Thus, although the procedures available today are different from those available in 1995, Dustin has not shown that they would result in a different outcome. Further, a rational basis exists to support the procedural differences. Therefore, there is no equal protection violation.
FACTS AND PROCEDURAL HISTORY
Our opinion in the prior appeal, which is included in the clerk's transcript for this appeal, includes an extended account of the facts and procedural history to that point. In brief, Dustin committed a violation of section 647.6 in 1995, when he was 16 years old, while he was on probation for earlier juvenile offenses. The section 647.6 violation occurred when, as he engaged in public urination, Dustin pulled down his pants and exposed his buttocks to a passing six-year-old. He was committed to the Probation Youth Facility, but escaped and committed additional offenses. The juvenile court found true a misdemeanor escape from custody and a misdemeanor taking of a vehicle. It committed him to CYA based on those offenses, along with the section 647.6 violation and a felony taking of a car that had been adjudicated earlier. Because the section 647.6 violation was one of the bases of the CYA commitment, Dustin was obligated to register as a sex offender upon his release from CYA. (Former § 290, subd. (d); current § 290.008, subd. (b), (c).)
Dustin's obligation to register as a sex offender apparently did not become a contested issue until 2009, when he was released on parole after serving a prison term for an adult offense. He filed a petition for a writ of habeas corpus in 2010, challenging this requirement as well as some parole conditions triggered by it. The parole conditions included a prohibition on living with minors, which would have barred Dustin from living with the child with which his fiancée was pregnant after the child was born. The superior court granted relief based on the theory that in 1995, the juvenile court was unaware of its discretion to avoid the registration requirement and all its consequences by declining to include the section 647.6 violation as a basis for the CYA commitment. We reversed this ruling, explaining that the record failed to support the conclusion that the juvenile court in the 1995 proceedings was unaware of its discretion. Dustin had defended the ruling on other grounds as well. We remanded to allow the superior court to consider these. The registration requirement and parole conditions were stayed.
Pursuant to our remand order, Dustin filed an amended petition on January 26, 2012. The superior court did not take the matter up again, however, until December 3, 2014, when the fact that Dustin had completed parole was placed on the record at a hearing. Dustin filed an amended habeas petition on December 26, 2014, explaining that the only remaining issue was the lawfulness of the registration requirement. The amended petition focused on the equal protection argument alone.
Among the issues in the prior proceedings was the imposition on Dustin of sex offender residency restrictions under section 3003.5. Dustin's brief in support of the 2014 amended petition expressly withdrew his claims on that issue.
After a hearing, the superior court ruled for Dustin. In its written order, it stated that the imposition of the registration requirement violated Dustin's right to equal protection of the law. This appeal followed.
DISCUSSION
The People devote seven pages of briefing to the threshold argument that Dustin should have been denied relief because of the incorrect form of his petition. The People observe that a petition for a writ of habeas corpus is not the correct vehicle by which to obtain the requested relief, because, having completed his parole, Dustin is not now in actual or constructive custody.
We will deem the petition a mislabeled petition for a writ of mandate and proceed as if the trial court had granted relief on such a petition. A writ of mandate would be the proper form for granting an out-of-custody defendant relief from an erroneously-imposed obligation to register as a sex offender. (People v. Picklesimer (2010) 48 Cal.4th 330, 339.) We have discretion to treat the form of the petition as if it were correct when it is appropriate to do so. (Id. at pp. 340-341.) Doing so is appropriate here because the record is adequate, the only question presented is one of law, and the alternative—a remand to allow Dustin to refile his petition with a different caption, leading to the same relief and the same appeal—would be a waste of time and resources.
Apart from this threshold issue, the only question presented on appeal is whether the registration requirement as applied to Dustin violates his right to equal protection of the law because statutory changes since 1995 mean a juvenile offender in a similar situation today would not be committed to DJJ and therefore would not be required to register. This is a pure question of law, which we review de novo. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799; Topanga & Victory Partners, LLP v. Toghia (2002) 103 Cal.App.4th 775, 779-780; Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1687.)
Dustin relies on both the equal protection clause of the Fourteenth Amendment and the equal protection provision contained in article I, section 7 of the California Constitution. Federal and state equal protection standards are not the same in all situations. (See Warden v. State Bar (1999) 21 Cal.4th 628, 652-653 (dis. opn. of Kennard, J.); Butt v. State of California (1992) 4 Cal.4th 668, 683, 685.) The parties do not claim there are any differences relevant to this case, however.
Except where a fundamental right, a suspect classification, or a quasi-suspect classification is at issue, courts review equal protection claims under the rational-basis standard. Under that standard, a law that subjects similarly-situated individuals to disparate treatment must be supported by a rational basis. (Vacco v. Quill (1997) 521 U.S. 793, 799; Plyler v. Doe (1982) 457 U.S. 202, 216-218 & fns. 14 & 15; Warden v. State Bar, supra, 21 Cal.4th 644-645.) The parties agree that the rational-basis standard applies to this case.
This standard is highly deferential to the legislative will. The constitutional challenge fails if there is any rational connection between some legitimate governmental purpose and the difference in treatment arising from the challenged law. The rational connection and the legitimate purpose need only be conceivable; they need not actually have motivated the legislators. Further, the burden of showing the nonexistence of a rational basis falls on the challenger, so that the challenger must negate every conceivable rational basis. (F.C.C. v. Beach Communications (1993) 508 U.S. 307, 314-315; Johnson v. Dept. of Justice (2015) 60 Cal.4th 871, 882.)
A juvenile found to have violated section 647.6 and committed to CYA in 1995, like one committed to DJJ on that offense today, is required to register as a sex offender when released. (Former § 290, subd (d); § 290.008, subd. (b), (c).)
Dustin's equal protection argument arises from changes in the law regarding the circumstances under which a juvenile can be committed to DJJ. He contends that a juvenile today facing the situation he faced in 1995 would not be committed to DJJ and therefore would not have to register as a sex offender.
As mentioned above, the situation Dustin faced in 1995, specifically, was this: The juvenile court found he committed a violation of section 647.6 and committed him to the Probation Youth Facility. After Dustin violated the conditions of his probation by escaping from that facility and committing more offenses, the juvenile court committed him to CYA. According to the court's order, the CYA commitment was based on the section 647.6 violation, the subsequent escape, a prior vehicle theft, and a subsequent vehicle theft.
Dustin's claim that a similarly-situated juvenile would receive more favorable treatment today is based on the fact that statutory amendments have reduced the juvenile court's discretion to commit wards to DJJ. In 1995, juvenile courts had broad discretion to commit wards to CYA for any offense; after amendments enacted in 2007, courts could commit wards to DJJ only for specified offenses. (Stats. 2007, ch. 175, §§ 19, 22, 37 [amended Welf. & Inst. Code, §§ 731, 733]; In re N.D. (2008) 167 Cal.App.4th 885, 890-892.)
Under the 2007 amendments, a ward could be committed to DJJ only "if the ward has committed an offense described in" Welfare and Institutions Code section 707, subdivision (b). (Former Welf. & Inst. Code, § 731, subd. (a)(4); Stats. 2007, ch. 175, § 19.) A section 647.6 violation was not among those specified offenses. (Welf. & Inst. Code, § 707, subd. (b).) In 2012, however, the law was amended again to add sex offenses listed in section 290.008 to the list of offenses eligible for a DJJ commitment. (Welf. & Inst. Code, § 731, subd. (a)(4); Stats. 2012, ch. 7, § 1.) Section 647.6 is included in that list. (§ 290.008, subd. (c)(2).)
Welfare and Institutions Code section 733, which was added as part of the 2007 amendments adds a further limitation on the juvenile court's discretion: It prohibits a DJJ commitment unless "the most recent offense alleged in any petition and admitted or found to be true by the court" is an enumerated offense. (Welf. & Inst. Code, § 733, subd. (c), italics added; Stats. 2007, ch. 175, § 22.)
Dustin points out that when he was committed to CYA in 1995, the section 647.6 violation was not the most recent offense on which the juvenile court relied in ordering his commitment. The dispositional order cited a felony car theft from an earlier date, as well as a misdemeanor escape and a misdemeanor car theft from later dates. The later offenses would not qualify for a DJJ commitment today. A court relying on them would not have authority to commit a ward to DJJ even if it relied on the section 647.6 offense as well, because they are more recent. Dustin concludes that this means a juvenile ward facing disposition today under circumstance like those of his case in 1995 could not be committed to DJJ and thus would not be required to register as a sex offender.
But this is not correct. The juvenile court would still have means of committing a ward in the same situation to DJJ today. As described in our opinion in the prior appeal, the several offenses the juvenile court relied on when it committed Dustin to CYA in 1995 were alleged in several different juvenile wardship petitions. The felony car theft happened on June 8, 1995, and was alleged in a petition dated July 11, 1995. The section 647.6 violation occurred on June 19, 1995, and also was alleged in the July 11, 1995 petition. The juvenile court placed Dustin on probation and committed him to the Probation Youth Facility on August 22, 1995. Dustin violated probation by escaping on September 10, 1995. That offense was alleged in two separate petitions, dated September 20, 1995, and November 2, 1995. The misdemeanor car theft took place on October 31, 1995, and also was alleged in the petition of November 2, 1995. In Greg F., supra, 55 Cal.4th at p. 400, our Supreme Court made it clear that, in a situation like this, the juvenile court would have discretion to dismiss the two later petitions, leaving the DJJ-eligible offense as the most recent offense in the operative petition, "so that the [later] matter can be treated as a probation violation, allowing the ward to be committed to" DJJ.
In Greg F., the minor committed an assault by means of force likely to produce great bodily injury, a DJJ-eligible offense. The juvenile court ordered probation with an out-of-home placement. (Greg F., supra, 55 Cal.4th at pp. 400-401.) This placement failed when the minor refused to participate in treatment, and he was detained in juvenile hall. While in juvenile hall, he committed a battery, a non-eligible offense. The district attorney filed a new juvenile wardship petition and the minor admitted to the battery. Soon afterwards, the prosecutor realized these proceedings meant the most recent offense in the operative petition was not DJJ-eligible. He moved to withdraw the new wardship petition, vacate the proceedings, and instead file a notice of probation violation, arguing that then the offense for which probation had been granted would be the most recent offense in the operative petition, empowering the court to commit the ward to DJJ. The juvenile court allowed this, but the Court of Appeal reversed. (Id. at pp. 401-402.)
The Supreme Court reversed the Court of Appeal. It held that the juvenile court's authority under Welfare and Institutions Code section 782 to dismiss a wardship petition encompassed a dismissal to allow the prosecution to substitute a notice of probation violation in the petition's place, for the purpose of making a DJJ-eligible offense the most recent offense within the meaning of Welfare and Institutions Code section 733. (Greg F., supra, 55 Cal.4th at pp. 419-420.) In reaching this conclusion, the Supreme Court endorsed existing Court of Appeal cases stating that a violation of probation, where probation was granted for a DJJ-eligible offense, can result in a DJJ commitment, even though the probation violation constituted a later offense that was not DJJ-eligible. The court pointed out that Welfare and Institutions Code section 733 bars a DJJ commitment when the latest offense in a petition (under Welfare and Institutions Code section 602) is not DJJ-eligible, but a violation of probation is charged in the juvenile court by means of a notice of violation (under Welfare and Institutions Code section 777), so the probation violation's failure to be a DJJ-eligible offense does not operate to block a DJJ commitment. (Greg F., supra, at p. 404.) A key idea in those appellate cases is that when the juvenile court is confronted with a DJJ-eligible offense, it should not be forced into a choice of either imposing a DJJ commitment in the first instance, or granting probation and thereby forfeiting the ability to commit the minor to DJJ for a violation of probation unless the violation is another DJJ-eligible offense. (See, e.g., In re M.B. (2009) 174 Cal.App.4th 1472, 1476-1478.) The Supreme Court stated: "Having granted the minor leniency by placing him on probation for a [DJJ]-qualifying offense, the court retains jurisdiction to impose a [DJJ] commitment if the minor violates that probation. The availability of that option provides an important incentive for the minor to reform." (Greg F., supra, at p. 408.)
A case like Dustin's arising today would be on all fours with Greg F. The juvenile court would have discretion to dismiss the later wardship petitions so that the later offenses could be dealt with as violations of probation that had been granted for a DJJ-eligible offense. If the court proceeded in that way, it could commit the minor to DJJ, just as it did in 1995, and the registration requirement would be triggered.
It follows that the juvenile court's discretion in this instance would not be so different today from what it was in 1995. In 1995, it could commit Dustin to CYA because its dispositional discretion was broad, instead of being limited to enumerated offenses. Now, it would have discretion to commit to DJJ a juvenile who had engaged in the same conduct in the same order by dismissing the later petitions; the new offenses could be re-filed as violations of probation, leaving the section 647.6 violation as the latest offense within the meaning of Welfare and Institutions Code section 733, subdivision (c).
Differences in the juvenile court's discretion in 1995 and today remain, of course. In 1995, the court did not need to dismiss anything to arrive at the CYA commitment, the procedural circumstance of a probation violation was irrelevant, and the presence of a section 647.6 violation was unnecessary.
These differences, however, do little to support Dustin's claim that a juvenile ward in the position he occupied in 1995 would today avoid a DJJ commitment and the associated registration requirement. A court believing that was the appropriate disposition would still be empowered to impose it. We conclude, therefore that Dustin has not made even the threshold showing necessary for his equal protection argument: a showing that similarly-situated individuals are treated differently under the law.
Even if the differences between the procedures faced by Dustin in 1995 and those faced by his hypothetical counterpart today amounted to differential treatment for purposes of equal protection analysis, we would find them supported by a conceivable rational basis. Finding a rational basis is a straightforward task in this case: Since Dustin has not demonstrated any difference results, the only rational basis that would need to be identified is a rational basis for subjecting the past and present wards to different procedures.
As this court has observed elsewhere, the purpose of the law limiting juvenile courts' discretion to commit wards to DJJ was to reduce the cost and increase the effectiveness of juvenile confinement by shifting many juvenile offenders to county facilities. (In re N.D. (2008) 167 Cal.App.4th 885, 891-892.) This is a legitimate governmental purpose, and the changed procedures juvenile courts employ under the new law—including the procedure endorsed by the Supreme Court in Greg F., through which a ward like Dustin could be committed to DJJ today—are rationally adapted to the new purpose. The fact that the scope of the juvenile court's discretion under the new procedures is narrower than it was in 1995 does not amount to an equal protection violation.
At oral argument, Dustin's counsel raised the following argument for the first time: Although a ward like Dustin could be committed to DJJ today under Greg F., such a ward could not have received such a commitment in the period between 2007 and 2012, because a section 647.6 violation was not eligible for it during that period. Because the class of persons in Dustin's situation during that period would have received a better disposition, counsel argued, there is an equal protection violation unless a rational basis supports the difference in treatment between that class at that time and those who were similarly situated before and after.
We need not address this argument because it has been raised too late. Arguments raised at oral argument but not adequately raised in the briefs can properly be disregarded. (Amerigas Propane, LP v. Landstar Ranger, Inc. (2010) 184 Cal.App.4th 981, 1001, fn. 4.)
If we were to address the argument, we would conclude it has no merit. A rational basis may readily be conceived for the difference in treatment between juvenile section 647.6 violations committed during the time between the 2007 and 2012 amendments and those committed before and after that period. The Legislature could reasonably believe the 2007 amendments unduly constrained the juvenile courts' commitment discretion by excluding section 647.6 and other sex offenses from the list of those eligible for DJJ; and it could in 2012 reasonably close the gap that had been thus created. Dustin's argument implies that if the Legislature confers an advantage on a class of defendants who commit certain offenses during a limited period of time, all defendants similarly situated who commit those offenses at any other time, before or after, must receive the same advantage. Even if the Legislature rationally concluded the advantage should not have been conferred, it would be constitutionally precluded for all time from withdrawing it. We do not think this can be correct.
DISPOSITION
The judgment is reversed. The superior court is directed to vacate its order granting relief on Dustin's petition and to issue a new order denying relief. The stay on enforcement of the sex-offender-registration requirement previously issued by this court is dissolved.
/s/_________
SMITH, J. WE CONCUR: /s/_________
DETJEN, A.P.J. /s/_________
BLACK, J.
Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------