Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County No. 30073, Ronald W. Hansen, Judge.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
PROCEDURAL HISTORY
Appellant Jaime Humberto Garcia was charged with 29 counts of lewd and lascivious acts against minor A. (Pen. Code § 288, subd. (a)), and two counts of lewd and lascivious acts against minor T. (§ 288, subds. (a) & (c)(1)). The offenses were alleged to have occurred between April 1996 and April 2005. A jury found Garcia guilty of 17 lewd acts against A. It acquitted him of 12 other counts alleged against A. and of both the alleged lewd acts against T. The trial court denied Garcia probation and sentenced him to 35 years in prison.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, Garcia contends (1) the trial court’s finding that he was statutorily ineligible for probation pursuant to section 1203.066, subdivision (d)(1), violated the constitutional ban on ex post facto laws; and (2) that his due process rights were violated (a) when the court made probation contingent on his acceptance of the guilty verdicts; (b) by the court’s failure to consider California Rules of Court, rule 4.414, factors; and (c) by the court’s refusal to order a revised section 288.1 report. Since we agree with Garcia’s claim that application of section 1203.066, subdivision (d)(1), violates the constitutional ban on ex post facto laws, we do not address his additional claims. We vacate the sentence and remand for resentencing.
FACTUAL HISTORY
A. was born in 1991. Garcia and his wife were close friends of A.’s family, and Garcia’s wife was A.’s godmother. At one point, Garcia employed A.’s father and was the family’s landlord. In 2000, Garcia and his wife had a son, and A. thought of him as a brother.
Garcia’s family lived just blocks from the school, while A.’s family lived five miles away. When A. began kindergarten, she would often go to Garcia’s house after school and stay with Garcia or his wife until a parent picked her up. This arrangement continued until A. was in junior high. A. and her family also visited Garcia’s house on a biweekly basis to watch a movie or have dinner.
Beginning in the first grade, A. spent the night at Garcia’s house almost every other weekend. She enjoyed being with Garcia’s family; they played games with her, took her to the movies or out to dinner, and bought jewelry and clothes for her. When Garcia’s son was born, A. spent the night less often, but she stayed more often again when the child was old enough for A. to babysit him. When she babysat, she would sleep on either a couch or an air mattress.
A., who was 15 years old at the time of trial in March of 2007, testified that Garcia began to touch her inappropriately when she was just five or six years old. She would wake up to find Garcia rubbing her vagina on top of or underneath her underwear. In response, A. would roll over or get up to go to the bathroom. When she did so, Garcia would walk away. Garcia and A. never discussed the incidents, which A. was sure occurred at least once every three months, if not more often.
A. began to make up excuses to avoid sleeping at Garcia’s house, so the incidents became less frequent. However, the touching began to occur during the daytime in the summer when A. was out of school but staying at Garcia’s house.
The last incident occurred in late July or early August of 2004, when A. was 14 years old. Garcia, his wife, and son were going to the coast and asked A. to come along. While A. slept in a hotel bed with Garcia’s wife, she woke to find Garcia’s hand going down her body and touching her vagina underneath her underwear. A. moved closer to Garcia’s wife, and Garcia pulled his hand away and walked out of the room.
A. testified that she did not initially want to report the contacts because she was very close to Garcia’s wife and son. She felt that telling someone would destroy the family. When she was 12 or 13, she did tell her friend E., but asked her not to say anything. In February of 2006, when A. was in the ninth grade, she told her sister and cousin what had happened, and later that night, she told her parents. Her parents reported the incidents to the police department.
During the investigation, a detective had A. make a pretext telephone call to Garcia to see if he would admit what had happened. A. told Garcia she was having pain in her vaginal area and needed money to see a doctor. In the phone call, which was played for the jury, Garcia told A. she could have gotten an infection from “playing with [her]self.” Garcia also told A. that he “never physically touched [her] down there” and that she “always had [her] clothes on.” Garcia agreed to give A. money for the doctor, but told her not to tell anyone what had happened.
Defense
Garcia testified in his own behalf. He denied touching A. inappropriately. He presented a number of character witnesses who said he was a good and trustworthy individual who would not commit this type of crime.
DISCUSSION
Garcia argues that the trial court violated the prohibition against ex post facto laws (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9), when it denied him probation under section 1203.066, subdivision (d)(1). Garcia contends that the trial court’s finding that he was statutorily ineligible for probation was based erroneously on a statute in effect at the time of sentencing, the 2006 version of section 1203.066, rather than the version of section 1203.066 in effect at the time he committed the offenses between 1996 and 2005. Garcia argues that the use of the newer version of the statute was an ex post facto violation of law, since the amendment made the punishment for his crimes more burdensome. We agree.
At sentencing, the trial court stated that it had read and considered the probation report “with all the attachments,” which consisted of numerous letters of support from friends and family and a section 288.1 psychological report from Dr. Richard A. Blak. The court found that Garcia had no factors in aggravation and one in mitigation, his “relatively minor record.” The court concluded that Garcia did not fall within any of the specific disqualifying factors or criteria of section 1203.066, subdivision (a), but found applicable subdivision (d)(1), which the court stated provides that:
“[I]f the person is convicted of [section] 288[,] probation may be granted only if the following terms and conditions are met: Number 1, he’s amenable to undergoing treatment; Number 2, he would be placed in a recognizable treatment program and there would be no threat of physical harm to the victim.”
The trial court stated that it had reviewed Dr. Blak’s report but had “problems” with it. In the report, Dr. Blak stated that he had interviewed and evaluated Garcia on two occasions and that Garcia could “be safely and effectively treated on an outpatient basis in the community as part of a structured probation.” The court, however, determined that, to be amenable for treatment, “it would seem there has to be acknowledgement of a problem, which [Garcia] denies and continues to maintain his innocence.” The court also found Dr. Blak’s report lacking in that it did not include a “discussion of the facts surrounding the commission of the acts” as required by sections 288.1 and 1027.
Defense counsel requested that, if the court rejected probation, it impose the lower term and that the terms run concurrent. The prosecutor questioned whether the court was considering probation, to which the court replied that, although it had to consider it, its preliminary indication was to deny probation because Garcia continued to deny any guilt. The prosecutor then asked that Garcia be sentenced to the middle term and that the terms be imposed consecutively.
The court reiterated that it did not think Garcia met the requirements of section 1203.066, subdivision (d)(1), and sentenced him to the lower term on the principal term and imposed one-third the mid-term on the remainder of the counts to run consecutively, for a total of 35 years for the 17 convictions.
Section 1203.066
The commission of a lewd and lascivious act on a minor under the age of 14 carries a sentence of three, six, or eight years. (§ 288, subd. (a).) The only way this sentence could be less is if the trial court granted Garcia probation. “Probation is an act of leniency, not a matter of right,” (People v. Walmsley (1985) 168 Cal.App.3d 636, 638, disagreed with on other grounds in People v. Lafantasie (1986) 178 Cal.App.3d 758, 763-764) and a trial court has broad discretion to grant probation. (People v. Lafantasie, supra, at p. 761.) At all times applicable, section 1203.066 forbade probation for someone convicted of committing a lewd or lascivious act against a child in violation of section 288 when (1) the act was committed by force or fear of immediate bodily injury; (2) the act caused bodily injury; (3) the person who committed the act was a stranger to the victim; (4) a weapon was used in the commission of the act; (5) the person who committed the act was previously convicted of a sex act; (6) the person who committed the act kidnapped the victim; (7) the act was committed against more than one victim; (8) the person had substantial sexual conduct with the victim; or (9) the person used obscene matter in committing the conduct. (§ 1203.066, subd. (a)(1)-(9).)
The version of section 1203.066, subdivision (d), in effect when Garcia committed the section 288, subdivision (a), offenses further provided that, to apply, the section 1203.066, subdivision (a), factors had to be pled and proven or admitted by the defendant. The People concede that, under this version of the statute, Garcia would have been eligible for probation because the elements of section 1203.066, subdivision (a), were not pled and proven or admitted by Garcia.
Effective January 1, 2006, subdivision (d) of section 1203.066 was renumbered as subdivision (c). As amended, subdivision (d)(1) provides that, if the factors listed in subdivision (a) are not pled and proven, probation may be granted, but only if certain terms and conditions are met:
“(A) If the defendant is a member of the victim’s household, the court finds that probation is in the best interest of the child victim.
“(B) The court finds that rehabilitation of the defendant is feasible and that the defendant is amenable to undergoing treatment .…
“(C) If the defendant is a member of the victim’s household, probation shall not be granted unless the defendant is removed from the household .…
“(D) The court finds that there is no threat of physical harm to the victim if probation is granted.” (§ 1203.066, subd. (d)(1); Stats. 2005, ch. 477, § 5.)
At sentencing, the trial court applied the current amended version of section 1203.066, subdivision (d)(1)(B), when it found that Garcia was not amenable to treatment and denied him probation.
Ex post facto principles
Both the federal and state Constitutions prohibit ex post facto laws. (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9; Collins v. Youngblood (1990) 497 U.S. 37, 41, 110 (Collins); Tapia v. Superior Court (1991) 53 Cal.3d 282, 288 (Tapia).) We interpret the state ex post facto clause the same as its federal counterpart. (People v. Snook (1997) 16 Cal.4th 1210, 1220.) For simplicity’s sake, we refer to them as a single constitutional provision. (People v. Frazer (1999) 21 Cal.4th 737, 754, fn. 15, disapproved on other grounds in Stogner v. California (2003) 539 U.S. 607, 610.)
The traditional understanding of the ex post facto clause was expressed in Beazell v. Ohio (1925) 269 U.S. 167, 169-170:
“It is settled … that any statute which punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with [a] crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.” (See Tapia, supra, 53 Cal.3d at pp. 293-294; People v. McVickers (1992) 4 Cal.4th 81, 84.)
This formulation conforms with the seminal decision in Calder v. Bull (1798) 3 U.S. 386, 390, and was reaffirmed in Collins, supra, 497 U.S. at pages 42-43. The court in Collins further refined the scope of the prohibition established by the ex post facto clause as follows: “Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts.” (Id. at p. 43.) “Under Collins … the ex post facto clause prohibits not just a burden but a more burdensome punishment.” (People v. McVickers, supra, 4 Cal.4th at p. 84.) As a result, after Collins, the relevant inquiry is not whether the law results in a disadvantage to the person affected by it, but whether it increases the penalty for the crime. (California Dept. of Corrections v. Morales (1995) 514 U.S. 499, 506-507, fn. 3 (Morales); People v. McVickers, supra, at p. 84.)
The standard for determining whether a law violates the ex post facto clause has two components: “[A] law must be retrospective—that is, ‘it must apply to events occurring before its enactment’—and it ‘must disadvantage the offender affected by it’ … by altering the definition of criminal conduct or increasing the punishment for the crime .…” (Lynce v. Mathis (1997) 519 U.S. 433, 441.)
Retroactivity
The Penal Code provides, in section 3, that none of its provisions are retroactive unless expressly stated. Here, the language in section 1203.066, subdivision (d)(1), does not establish “an express declaration” or “a clear and compelling implication” that the Legislature intended the statute to be applied retroactively. (People v. Hayes (1989) 49 Cal.3d 1260, 1274; People v. Grant (1999) 20 Cal.4th 150, 157.) Absent a clear indication of intent, section 1203.066, subdivision (d)(1), is presumed to operate prospectively. (People v. Grant, supra, at p. 157.)
“A law is not retroactive ‘merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment.’ [Citation.]” (People v. Grant, supra, 20 Cal.4th at p. 157.) Rather, a retroactive law “‘“change[s] the legal consequences of an act completed before [the law’s] effective date,” namely the defendant’s criminal behavior.’ [Citations.] In other words, the operative event for retroactivity purposes, and the necessary reference point for any ex post facto analysis, is criminal conduct committed before the disputed law took effect.” (John L. v. Superior Court (2004) 33 Cal.4th 158, 172, italics omitted.)
As applied to Garcia, section 1203.066, subdivision (d)(1), operates retrospectively because the required findings by the court before probation is granted are dependent upon his earlier offenses. At the time Garcia committed the offenses, the law did not require the court to make any of those findings to grant probation for offenses involving lewd and lascivious conduct with a child. (See former § 1203.066.) The application of section 1203.066, subdivision (d)(1), changed the legal consequences of Garcia’s offenses committed before the statute’s effective date and was applied retroactively.
Increase in punishment
Az party asserting an ex post facto claim has the ultimate burden of establishing that the measure of the punishment itself has changed. (Morales, supra, 514 U.S. at p. 510, fn. 6.) No universal formula exists for determining whether a legislative change increases the measure of punishment. (Id. at p. 509.) Rather, whether a legislative adjustment creates a sufficient risk of increased punishment is largely a “matter of ‘degree.’” (Ibid.)
Garcia relies on People v. Delgado (2006) 140 Cal.App.4th 1157, in which the court found that the constitutional ban on ex post facto laws prohibited imposition of probation conditions pursuant to section 1203.097, which governs cases involving domestic violence, when the underlying offenses were committed before the statute was enacted. (People v. Delgado, supra, at p. 1161.)
In Delgado, the defendant pled guilty in 2005 to four counts, including a count of corporal injury to a spouse committed in 1993. The court placed the defendant on 36 months’ probation—the minimum probationary term pursuant to section 1203.097. The defendant argued at sentencing and on appeal that he could not be sentenced under section 1203.097 because the underlying offenses occurred before the 1994 effective date of the statute. The court in Delgado agreed. (People v. Delgado, supra, 140 Cal.App.4th at pp. 1162-1163.)
The court reasoned that, because the law at the time the defendant committed the offenses did not require mandatory conditions of probation for offenses involving domestic violence, the application of section 1203.097 changed the legal consequences of the defendant’s offenses before the statute’s effective date and was applied retroactively. (People v. Delgado, supra, 140 Cal.App.4th at pp. 1164-1165.)
The court also concluded that application of section 1203.097 to the offenses that occurred prior to its enactment violated the prohibition against ex post facto laws because it increased the measure of punishment. At the time the defendant committed the offenses, the length of the probationary term for a section 273.5 violation was discretionary, the only condition being that it could not exceed four years. Section 1203.097 removed the trial court’s discretion and imposed a mandatory minimum term of 36 months, along with several other mandatory conditions. (People v. Delgado, supra, 140 Cal.App.4th at pp. 1166-1167.) The court observed that, “changes in sentencing rules can violate the ex post facto clause when the rules sufficiently circumscribe judicial discretion, even if the change does not automatically lead to a more onerous result than what would have occurred under the prior law.” (Id. at p. 1169.)
Garcia also relies on People v. Martinez (1988) 197 Cal.App.3d 767, where we held that application of section 1203.066 to the defendant’s case violated the constitutional proscription against ex post facto laws. The defendant was convicted of 20 counts of lewd and lascivious acts against his stepdaughter, committed between June of 1978 and January of 1980. Each of the 20 counts charged that the defendant occupied a position of special trust with the victim and that he had committed an act of substantial sexual conduct within the meaning of section 1203.066, subdivision (a)(9), making him statutorily ineligible for probation unless the trial court made four specific findings pursuant to section 1203.066, subdivision (c). The court denied the defendant probation and sentenced him to prison for 34 years.
The defendant in Martinez argued that application of section 1203.066, which was added by statute effective January 1, 1982, two years after the last molestation occurred, violated the constitutional proscription against ex post facto laws. The People argued that the new law was not more burdensome because the defendant was statutorily ineligible for probation under the law that existed at the time the offenses were committed. At that time, section 1203, subdivision (e)(5), provided that, except in unusual cases where the interests of justice would best be served, probation may not be granted if the defendant had previously been convicted of a felony, which was the case with the defendant in Martinez. (People v. Martinez, supra, 197 Cal.App.3d at p. 777.)
We agreed with the defendant in Martinez. While he would not have been eligible for probation under the earlier statute because he was an ex-felon, we stated that the question of whether an ex post facto violation occurred must be answered “in general, and not merely in the context of a specific case .…” (People v. Martinez, supra, 197 Cal.App.3d at p. 777.) We agreed with the defendant that section 1203.066 violated the proscription against ex post facto laws because it rendered statutorily ineligible for probation a class of offenders who were not necessarily ineligible prior to its enactment. “[A]pplication of section 1203.066 to offenses occurring before its effective date violates the constitutional proscription against ex post facto laws by virtue of its stringent limitation on the trial court’s discretion to grant probation.” (People v. Martinez, supra, at p. 778.)
Here, the People argue that the current statute does not increase the punishment of Garcia’s convictions because the court could have found him ineligible for probation under California Rules of Court, rule 4.414, particularly under rule 4.414(b)(7), based on a lack of remorse. However, a party asserting an ex post facto claim does not have the burden of demonstrating that he or she would have been sentenced to a lesser term under the prior law. (Morales, supra, 514 U.S. at p. 510, fn. 6.) The amended subdivision (d)(1) of section 1203.066 is not discretionary. Instead, it states that “probation may be granted only if … the court finds that the defendant is amendable to undergoing treatment.…” (Italics added.) “[C]hanges in sentencing rules can violate the ex post facto clause when the rules sufficiently circumscribe judicial discretion, even if the change does not automatically lead to a more onerous result than what would have occurred under the prior law.” (People v. Delgado, supra, 140 Cal.App.4th at p. 1169.)
Here we conclude that amended section 1203.066, subdivision (d)(1), on which the trial court relied, violates the prohibition against ex post facto laws because, by circumscribing judicial discretion, it renders ineligible for probation a class of offenders who were not necessarily ineligible prior to its enactment.
The People finally contend that, even if the application of the amended version of section 1203.066, subdivision (d)(1), was improper, the error was harmless. We must disagree. As stated in People v. Bruce G. (2002) 97 Cal.App.4th 1233, in which the trial court erroneously relied on subdivision (a)(8) of section 1203.066 when it denied the defendant probation:
“An erroneous understanding by the trial court of its discretionary power is not a true exercise of discretion. [Citation.] ‘Defendants are entitled to sentencing decisions made in the exercise of the “informed discretion” of the sentencing court. [Citations.]’ [Citation.] A court cannot exercise that ‘informed discretion’ where it is unaware of the scope of its discretionary powers. [Citation.]” (People v. Bruce G., supra, 97 Cal.App.4th at pp. 1247-1248.)
Here, the trial court was misinformed about the scope of its discretionary power, erroneously believing that section 1203.066, subdivision (d)(1), limited its discretion. Remand for resentencing is required. (People v. Sherrick (1993) 19 Cal.App.4th 657, 661 [remand for resentencing where trial court erroneously believed § 1203.066 applied].)
We conclude that application of section 1203.066, subdivision (d)(1), to the offenses occurring before 2006 violates the constitutional prohibition against ex post facto laws. We express no opinion regarding whether Garcia is entitled to probation, only that the case must be remanded for sentencing under the law in place when Garcia committed the offenses.
DISPOSITION
The judgment of conviction is affirmed. Garcia’s sentence is ordered vacated and the matter remanded for resentencing under the former section 1203.066 in effect when Garcia committed the charged offenses (between April 1996 and April 2005).
WE CONCUR: Levy, J., Kane, J.