Opinion
A148869
02-05-2018
In re J.S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.S., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J0900388)
J.S. has been a ward of the Contra Costa Juvenile Court for more than eight years, beginning when he was 12. There have been multiple placements and probation violations. Three times J.S. was sent to the Division of Juvenile Facilities (DJF) pursuant to Welfare and Institutions Code section 1752.16 to participate in the juvenile sex offender treatment (JSOT) program. In the summer of 2015, J.S. completed the program and was returned to the juvenile court, which again admitted him to probation upon specified conditions. One of those conditions was that J.S. "not have, view or possess verbal descriptions of or pictures showing 'sexual conduct' "—which was defined to include "intercourse, oral sex, anal sex, lewd and lascivious acts, or any excretory functions performed in lewd and lascivious manner between people (regardless of gender) or between people and animals or any penetration of the vagina or rectum by any object and sadomasochistic abuse, masturbation, exhibition of the genitals, pubic or rectal area, or defecation or urination for the purpose of sexually arousing [the] viewer"—except as authorized by specified persons.
Subsequent statutory references are to this code unless otherwise indicated.
In May of 2016, the juvenile court found that J.S.—who was then more than 20 years of age—violated this condition, imposed lifetime sex offender registration, and ordered him committed to DJF. J.S. advances a number of arguments—the majority of which were not raised below—as establishing fatal infirmities in the violation, the commitment, and the registration requirement. We conclude there is no basis for overturning the commitment, and we thus affirm.
BACKGROUND
This is J.S.'s third appeal. He has been represented by the same appointed counsel for each of those three appeals. The briefs filed by both sides reflect a thorough knowledge of the record. It is consequently necessary to chronicle only those events needed to illumine and resolve the contentions on this appeal, and we begin by quoting from our opinion on the second appeal:
"J.S. came to the attention of police when, at 12 years of age, neighbors observed him in sexual activity with an eight-year-old boy. On March 12, 2009, a petition under [Welfare and Institutions Code] section 602 was filed, alleging that J.S. committed two counts of lewd and lascivious acts with a child, violations of Penal Code section 288, subdivision (a). J.S. admitted one count and was adjudged a ward of the court. He was placed at Gateway Residential Programs, from which he was expelled for failing to comply with the program's rules. The court sustained a probation violation and placed J.S. at Martin's Achievement Place, from which he was expelled for noncompliant and disruptive behavior. The court sustained a probation violation and J.S. was returned to Martin's Place, on condition that he take medication prescribed by a juvenile hall psychiatrist. The placement was terminated after J.S. placed his hands on the hips of an adult female staff member from behind and started pushing his erect penis against her through his clothing. After a contested probation revocation hearing, the court sustained a probation violation.
"Following a contested disposition hearing on March 28, 2011, the court continued J.S. as a ward of the court and committed him to the custody of DJF for a maximum term of eight years. J.S. appealed and, on May 22, 2012, this court reversed the commitment to DJF, as required by the holding of In re C.H (2011) 53 Cal.4th 94, 97-98 (C.H.). (In re J.S. (May 22, 2012, A131645) [2012 WL 1854300, nonpub. opn.].) However, on April 9, 2012, the juvenile court had already set aside the DJF commitment. At a contested hearing on that date, the court adopted the recommendations made in a probation department report, dated April 5, 2012, and ordered that J.S. be 'temporarily housed' at DJF, pursuant to section 1752.16, to be returned to Contra Costa County 'when he satisfactorily completes DJF's Sex Offender Behavioral Treatment' or in 2016 (J.S.'s 21st birthday, at which time the court's jurisdiction over him as a ward would end)." (In re J.S. (July 8, 2013, A135214) opn. ordered nonpub. Aug. 28, 2013, fn. omitted.)
As to the merits of J.S.'s second appeal, we concluded that in light of a recent amendment to section 1752.16, there was not a statutory lack of power for the juvenile court to order J.S. housed at DJF so that he could participate in its JSOT program. But the majority of our opinion was devoted to examining the constitutionality of a number of J.S.'s probation conditions, and we struck down a number of conditions as overly broad or so poorly worded as to be unenforceably vague.
One of the conditions we struck told J.S. "not [to] possess at any time any type of pornography, including written pornography, pictures, videotapes, or electronic computer applications or telecommunications access to such applications." Doing so, we adopted the analysis of United States v. Guagliardo (9th Cir. 2002) 278 F.3d 868, 939: " '[A] probationer cannot reasonably understand what is encompassed by a blanket prohibition on "pornography." The term itself is entirely subjective; unlike "obscenity," for example, it lacks any recognized legal definition.' " " 'Reasonable minds can differ greatly about what is encompassed by "pornography." Given this inherent vagueness, Guagliardo cannot determine how broadly his condition will extend. Further, we cannot determine whether the condition is otherwise reasonable . . . .' " (Ibid.) The challenged condition was stricken, however, we allowed that "[o]n remand, the court may consider whether a condition with greater specificity would be reasonable." (Id. at p. 940.)
The juvenile court tried again. On October 28, 2013, at a hearing for which the record does not include a reporter's transcript, it again ordered J.S. housed at DJF, fixed the maximum term of his confinement (8 years), and reframed the pornography condition as follows:
"Minor may not have, view or possess verbal descriptions of or pictures showing 'sexual conduct' unless the following conditions are met:
"[1] specific images of such material are approved by the minor's academic teacher, treating therapist or psychiatrist in writing with the images or material attached, and
"[2] 7 days' advance written notice is given by the teacher, treating therapist or psychiatrist to minor's probation officer and
"[3] the probation officer does not object to the minor's teacher, treating therapist or psychiatrist.
"For purposes of this paragraph, 'sexual conduct' includes:
"—intercourse, oral sex, anal sex, lewd and lascivious acts, or any excretory functions performed in a lewd and lascivious manner between people (regardless of gender) or between people and animals, or
"—any penetration of the vagina or rectum by any object, and
"—sadomasochistic abuse,
"—masturbation
"—exhibition of the genitals, pubic or rectal area, or
"—defecation or urination for the purpose of sexually arousing the viewer."
J.S. elected not to appeal from this order. Instead, while housed at DJF, he earned his GED in 2014, and completed the JSOT program in 2015.
In August of 2015, the probation officer was recommending that J.S. be accepted for "re-entry" into Contra Costa County, even though his time at DJF was "plagued with great concerns including physical violence, verbal abuse (usually of a threatening or sexual nature), gang activity, and sexual based offenses." The probation officer elaborated: "As recent as a year ago, the youth had accumulated 24 level three behavior reports (the worst behavior infractions), for offenses that range from threatening staff, battery on staff, and sexual offenses such as exposing his genitals. He had additionally accumulated 84 level two behavioral reports." J.S. was described as having pronounced anger management, "entitlement and manipulation issues," and the probation officer admitted to "great concern" regarding J.S.'s "remain[ing] a 'High Risk' for Aggression/Violence, a 'High Risk' for Social/Cognitive Skills, a 'High Risk' in regard to social influences, and a 'High Risk' for escape."
Those concerns were noted at the "re-entry" hearing held on August 10, 2015, when the prosecuting attorney opposed releasing J.S. from custody. Both the prosecuting attorney and the juvenile court were dismayed at the prospect of J.S.'s release from DJF, which the court called "outrageous." The court addressed J.S. in these stern words: "[Y]ou're one of the most dangerous people I've had released from the Department of Juvenile Justice. [¶] You did a terrible job there. [¶] . . . [¶] I don't know what's going to change you. I think the community is at risk. I am powerless to do anything about that at this time."
The juvenile court entered in the minutes its finding that J.S. posed "a danger and risk to [the] community." Nevertheless, the court continued him as a ward. J.S. was again placed on probation, ordered "released from . . . custody and placed on 180 days of home supervision upon release." The conditions of J.S.'s probation were read aloud to him by the court, including the "sexual conduct" condition quoted above. The hearing ended with the court telling J.S., "in all my time here, I've never read probation conditions quite as extensive as this. That is because they [the probation department] think you're dangerous," an opinion the court shared. Upon J.S.'s actual release to his grandparents, the probation officer put him under "GPS/Home Supervision." J.S. was advised he could appeal from this decision, but he elected not to do so.
In January 2016, the probation officer advised the court that J.S. had violated various conditions of his probation, including the "sexual conduct" one. Concluding that J.S. constituted "a clear threat to the safety of the community," the court ordered him detained in the county jail without bail. The court subsequently learned that the same violations would probably be the basis of criminal charges to be filed in Alameda County.
Initially, J.S. admitted one of the alleged violations if the "sexual conduct" one was dismissed. When J.S. changed his mind, his admission was withdrawn, and the matter went to a contested hearing.
That hearing was held on May 17. The sole witness was J.S.'s probation officer, who testified that during the course of conducting "a probation search" of J.S.'s residence he discovered on J.S.'s cell phone—among other contraband—"pictures of vagina, penis, exposed breast, masturbation, naked child. There's also a video of masturbation. I believe there was oral sex." Downloaded photographs (People's Exs. 1-11) of images on J.S.'s phone were received in evidence. The court concluded "based on the testimony here provided today as well as People's Exhibits 1 through 11 that the People have proven well beyond preponderance of the evidence that [J.S.] violated the conditions of his probation and that he knowingly possessed items which he was explicitly prohibited from possessing, according to the conditions . . . set by the Court, and that is the sexually explicit materials that are depicted in People's 1 through 11."
J.S. was living with his grandparents. He could not live with his parents because their home is very near to that of the original victim, and J.S. is under a stay-away order imposed when he was released by DJF. J.S. was handcuffed "for officer safety" in a different room while the search was being conducted.
Contraband that was gang-related. J.S. subsequently admitted to the probation officer that he was a Sureno. He is apparently classified by local enforcement as a confirmed gang member. Revocation was also sought because the search revealed J.S. to be in violation of the condition relating to gang paraphernalia.
In his written report, the probation officer added that the various electronic "devices revealed evidence of transmitting . . . pornography . . . to others." The probation officer described what occurred after J.S. was told he was being arrested for violating the terms of his probation: "[J.S.] was then escorted to a county vehicle, but before he was placed in the vehicle, he began to threaten to kill officers. He stated, 'I am going to kill all of you white mother fuckers!' . . . . [¶] When [J.S.] was placed in the vehicle, he refused to allow anyone to seat belt him in, and then threatened harm if the undersigned or other officers placed his seatbelt on him. He . . . repeatedly attempted to kick out the window, damaging the car in the process" and "was then booked into county jail . . . but not before Oakland Police had to be summoned for mutual aid."
The probation officer added: "The digital evidence collected was forwarded to the Contra Costa County District Attorney who analyzed it and confirmed a new criminal offense occurred. The DA is awaiting further information [in regard to] an initial victim's statement and evidence. Although it is a separate matter, it is notable . . . [J.S.] will be incurring an adult case that will be filed shortly. Senior inspector Daryl Holcomb of the 'Internet Crimes Against Children' . . . task force is leading the investigation of a victim who was discovered that lives out of state."
The dispositional hearing was held a week later. The probation officer submitted a written report in which he recommended that J.S. be formally committed to DJF because it "would provide the community safety for a period of two years, as well as offer [J.S.] the help he needs," that is "further sex offender treatment, and additional treatment to address his [other issues]." The report also noted that "there are no other known rehabilitative options available in a secure environment," and "Per DJF, a commitment at this point would also trigger sex registration, thus providing additional protection for the community." In sum, a commitment would be the "best opportunity to divert him from or prevent further delinquent activity, while providing a due level of safety to the community."
The hearing commenced with a lengthy statement from J.S's grandmother, a brief one by J.S., and a response from the probation officer. There followed brief argument by the prosecuting attorney and J.S.'s counsel. The latter conceded that "the lifetime registration [requirement]" could be imposed if the Alameda County District Attorney filed charges and J.S. was convicted as an adult, but counsel expressed unease about appropriateness of imposing it on him now, calling it "quite a burden to put on someone" for an offense committed when J.S. was 12. The probation officer disagreed, telling the court "registration is extremely important" as "a safety net" for both J.S. and the community.
The juvenile court began by noting that J.S.'s situation was "rather extraordinary," both for the length of his wardship, and for the paperwork it generated—"four volumes of files, which gives me an indication . . . he's had a lot of struggles while he's been a ward," something the court found "very disturbing." Not only was "the original offense . . . incredibly serious and dangerous," "[t]hrough various court-ordered placements and treatment programs, [J.S.] actually disclosed additional acts of sexual offenses that he committed against some [of] his own family members who were 7 years old . . . as well as a child of a family friend." Reviewing those files convinced the juvenile court that J.S. at liberty represented "a risk to any young person." "[A]t this point, registration is important" as a protection against J.S.'s "continued sexually abusive behavior" and his "victimizing those around him." And the juvenile court concluded: "[Q]uite frankly, I think the only way to protect the community is for me to follow probation's recommendation." It therefore continued J.S.'s wardship and committed him to DJF for one year and 355 days—the remaining time before jurisdiction ended with J.S's 21st birthday.
DISCUSSION
The Probation Violation
J.S. frames his first contention as follows: "The Finding of Probation Violation Should Be Reversed Because the Only Probation Condition [J.S.] Was Found to Have Violated Was Void and Unconstitutional" "because it unnecessarily infringed his First Amendment rights," specifically his "right to possess 'soft-core' pornography." Further claimed infirmities are that the sexual content "probation condition also deprived [him] of Equal Protection and Due Process because it was arbitrary, capricious and irrational, insofar as [he] was allowed to engage in sexual conduct with adults, but prohibited from possessing photographs of genitals that he was permitted to see and handle in person."
The Attorney General argues that J.S.'s contention "is not preserved [for appeal] because he failed to object when that condition was first imposed on October 28, 2013 . . . or when it was re-imposed on August 10, 2015, upon [his] discharge from DJF." Acknowledging the lack of objection on either of these dates, J.S. responds we should not deem his contention forfeited for two reasons: (1) "a juvenile probation condition that is unconstitutional on its face is subject to appellate review even absent an objection in the trial court" (citing In re Sheena K. (2007) 40 Cal.4th 875), and (2) his trial counsel was constitutionally incompetent for twice failing to object to imposition of the condition.
J.S. is correct that "our Supreme Court has held that the forfeiture rule does not apply to a defendant's contention that a probation condition is unconstitutionally vague and overbroad on its face when the challenge presents a pure question of law. (In re Sheena K. (2007) 40 Cal.4th 875, 887.)" (People v. Quiroz (2011) 199 Cal.App.4th 1123, 1127.) But this exception applies only to a timely direct appeal. It does not permit the constitutional challenge to a probation condition to be raised for the first time when considering the claim in the context of an appeal from the subsequent revocation. This is particularly true when the claim could have been, but was not, presented on a timely direct appeal. It should be doubly true when there were two such opportunities. (See People v. Howard (1997) 16 Cal.4th 1081, 1095; People v. Dixon (2003) 113 Cal.App.4th 146, 150; In re Jesse W. (2001) 93 Cal.App.4th 349, 355 ["an unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order"]; People v. Senior (1995) 33 Cal.App.4th 531, 535.)
As for the claimed ineffectiveness of earlier counsel, such claims in delinquency cases are analyzed like adult criminals: the two prong standard of Strickland v. Washington (1984) 466 U.S. 668, 690, namely, deficient performance and resulting prejudice. (In re Edward S. (2009) 173 Cal.App.4th 387, 406-407; In re Angel R. (2008) 163 Cal.App.4th 905, 910.) Prevailing on direct appeal is most infrequent. The challenged act or omission is presumed to have been made with a legitimate tactical goal, and is viewed in light of what counsel knew at that time. (Strickland v. Washington, supra, at pp. 689-690; People v. Maury (2003) 30 Cal.4th 342, 389.)
If there is a reasonable tactical explanation for trial counsel's act or omission, the ineffectiveness claim must be rejected. (In re Angel R., supra, 163 Cal.App.4th 905, 910; In re Elizabeth G. (2001) 88 Cal.App.4th 496, 503.) As phrased most emphatically by our Supreme Court, " ' " '[r]eviewing courts will reverse . . . [on direct appeal] on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission.' " [Citation.]' [Citation.] If the record on appeal ' " 'sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,' the claim on appeal must be rejected," ' and the 'claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding.' [Citation.]" (People v. Vines (2011) 51 Cal.4th 830, 876.)
Here, at least one satisfactory explanation comes immediately to mind. The juvenile court imposed the condition only after it had received the opinion (via the probation officer) of an experienced juvenile sex offender therapist that exposure to explicit sexual material "is part of what fuels inappropriate sexual behavior," and, conversely, "absence from pornography allows adolescents the time not to indulge in . . . deviant behavior." While at DJF, it was noted of J.S. that his "instability appears to be significantly affected by reactivity to external stimuli," a situation that is "more pronounced when [he] is not taking his medication as prescribed." (See fn. 7, post.)
J.S. attacks this as in effect nontestimonial hearsay, in addition to being "slight, and internally contradictory" and "not sufficient." This argument, which is made here for the first time, is in plain effect a claim that the therapist's opinion ought to have been ignored by the juvenile court. Not only is forfeited and untimely, it asks this court to reweigh that evidence, something we cannot do. (In re I.J. (2013) 56 Cal.4th 766, 773 [" ' "We do not reweigh the evidence" ' "]; In re S.C. (2006) 138 Cal.App.4th 396, 415 ["an appellate court does not reassess the credibility of witnesses or reweigh the evidence."].)
It must be remembered at J.S. was still under the age of 18 when the "sexual conduct" condition was imposed following the second appeal. "Thus," as we have repeatedly noted, " ' " 'a condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court.' " ' " (In re Victor L. (2010) 182 Cal.App.4th 902, 910, quoting In re Sheena K., supra, 40 Cal.4th 875, 889; accord, In re Edward B. (2017) 10 Cal.App.5th 1228, 1232-1233; In re Erica R. (2015) 240 Cal.App.4th 907, 912.)
And in our opinion on the second appeal.
J.S. was being ordered housed, not committed to DJF. In short, he was being sent to a secure institution of the state, and the power of the state to restrict access to explicit sexual materials to persons in such institutions is beyond question. (See, e.g., Pen. Code, § 2601, subd. (c)(1)(A); Snow v. Woodford (2005) 128 Cal.App.4th 383; Thornburgh v. Abbott (1989) 490 U.S. 401; 28 C.F.R. § 540.17(b).) Moreover, the condition might neutralize one of the triggers of J.S.'s aggressive violence. Trial counsel could make a reasonable tactical decision that an objection would be futile given (1) the original "pornography" condition had been thrown out for vagueness; (2) the replacement "sexual content" condition cured that defect, and could hardly be more precise in its wording; and (3) the likelihood that the condition would he held to satisfy the test of People v. Lent (1975) 15 Cal.3d 481, 486 in that it "relates to the crime for which [the delinquency was declared], relates to other criminal conduct, or . . . forbids conduct that is reasonably related to future criminality." (People v. Hall (2017) 2 Cal.5th 494, 498.) Even when undergoing the JSOT at DJF, when his access to sexually explicit material would be severely limited (or eliminated), J.S. was still committing what the probation officer termed "sexual offenses," including two "sexual assaults." Trial counsel could reasonably anticipate the juvenile court would be unreceptive to a plea to allow J.S. greater access to sexually explicit material when he was returned from DJF, so it would be pointless to try to overthrow the condition for a second time.
As might another approach: since 2009, J.S. had been taking psychotropic and antipsychotic medication to decrease his impulsive behavior. The probation officer advised the court that J.S. "has an extensive history of mental health concerns."
In any event, even if, solely for purposes of this appeal, the issue of the condition's validity had been preserved for review, it would be resolved against J.S.
In choosing what conditions would be imposed on J.S.'s probation, the juvenile court was vested with considerable authority. Our Supreme Court has noted the juvenile court law gives juvenile courts "great discretion" and " 'maximum flexibility' " in crafting conditions of probation (In re Greg F. (2012) 55 Cal.4th 393, 411; see § 730, subd. (b)) that are intended "to hold juveniles accountable for their behavior, and to protect the public." (In re Eddie M. (2003) 31 Cal.4th 480, 507.) The goal of protecting the safety of others is just as important as rehabilitating a juvenile, and it is the duty of the juvenile courts to strike a balance between these interests. (E.g., § 202, subds. (a), (b), (d); In re J.S. (2016) 6 Cal.App.5th 414, 423; In re Binh L. (1992) 5 Cal.App.4th 194, 204.)
J.S. had been adjudicated a delinquent because he committed a violent sexual offense. The ensuing years demonstrated beyond any question that he continued to commit both violent offenses and sexually-related offenses. The reformulated "sexual content" condition was not a blanket prohibition, nor did it attempt to forbid all forms of sexual expression. (Cf. People v. Pointer (1984) 151 Cal.App.3d 1128 [invalidating probation condition forbidding conception].) Restricting access to sexually explicit material was unquestionably intended to prevent recurrences by helping him "avoid [one] temptation of repeating his socially undesirable behavior." (People v. Moran (2016) 1 Cal.5th 398, 404.) The probation officer's involvement in monitoring that access also demonstrates that the condition is reasonably related to preventing future offenses. (See In re P.O. (2016) 246 Cal.App.4th 288, 295.) Thus, the condition relates both to the original offense in the past and avoiding similar conduct in the future. "[A] trial court may properly bar a probationer from possessing items that are not themselves illicit but that are related to past or future criminality." (People v. Hall, supra, 2 Cal.5th 494, 499.)
Satisfying the Lent test demonstrates that the condition cannot be branded as arbitrary, capricious, or irrational, and thus no abuse of the juvenile court's discretion to impose conditions of probation. (People v. Moran, supra, 1 Cal.5th 398, 403.) Given that "arbitrary, capricious, or irrational" is the standard chosen by J.S. for his due process and equal protection guarantees, they too fail. With respect to J.S's "right to possess 'soft-core' pornography"—assuming there is such a right for a juvenile probationer who is being sent to DJF—"conditions of probation that impinge on [a probationer's] constitutional rights must be tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation." (In re Victor L., supra, 182 Cal.App.4th 902, 910; accord, In re M.F. (2017) 7 Cal.App.5th 489, 493.) Because the condition was narrowly tailored to J.S.'s personal circumstances, and was intended to prevent a recurrence of a specific type of violent antisocial behavior by him, the claimed First Amendment right was legitimately subordinated.
That the condition might leave some gaps is not a ground to invalidate the attempt. It is a truism of constitutional analysis that legislation can be underinclusive, adopt differing approaches to a problem, or proceed unevenly toward a desired goal. (See, e.g., California Grocers Assn. v. City of Los Angeles (2011) 52 Cal.4th 177, 210; Kasler v. Lockyer (2000) 23 Cal.4th 472, 482; People v. Edwards (1991) 235 Cal.App.3d 1700, 1709.) "Nothing compels the state 'to choose between attacking every aspect of a problem or not attacking the problem at all' " (People v. Barrett (2012) 54 Cal.4th 1081, 1110), but that is precisely how J.S. frames the issue. Just because every trigger for future illegality is not, or cannot be, eliminated is no reason why courts cannot try to eliminate some. Pursuit of the perfect is not the enemy of the good. The juvenile court had the discretion to impose limitations it believed were "reasonably necessary to promote the goals of probation." (People v. Garcia (2017) 2 Cal.5th 792, 809.) Perfection is not constitutionally required. (See People v. Pirali (2013) 217 Cal.App.4th 1341, 1346.)
The Commitment
The most narrow argument made by J.S. contesting the validity of his commitment is that the juvenile court "erred by considering hearsay regarding new crimes with which [J.S.] had not been charged, as a basis for . . . DJF commitment." The claim is directed against information in the probation officer's status report to the court. (See fn. 4, ante.) That report was statutorily mandated to be received in evidence. (§ 706; Cal. Rules of Court, rule 5.785(b).) J.S. made no objection, so the claim is forfeited. (Evid. Code, § 353, subd. (a); In re S.B. (2004) 32 Cal.4th 1287, 1293.)
But even if the claim had been preserved for review, it would fail. The "broadest range of information" should be considered by a juvenile court in determining the appropriate disposition. (See In re T.C. (2009) 173 Cal.App.4th 837, 845; §§ 202, 725.5, 730, 731.) Given that dismissed charges and their underlying facts may be consulted (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329; In re Raymond B. (1981) 121 Cal.App.3d 785, 788-789), it seems pointless to preclude consideration of the ward's recent behavior, regardless of whether formal charges are pending, for that would substantially impair the court's duty to protect public safety. (See In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1683-1685.) Surely distribution of photographic images, however distasteful, is both less serious than the uncharged offenses J.S. admitted committing before he entered DJF and while he was at DJF with the JSOT program, and less pertinent in factoring risk to the public.
J.S. next contends that "the Juvenile Court lacked authority to commit [him] to DJF" because "the statutory scheme created by Assembly Bill 324 in 2012 does not authorize [his] commitment to DJF, as distinct from his housing at DJF. [He] contends that he is governed by the provisions of . . . section 1752.16, which are addressed specifically to persons in [his] procedural posture, and that he is not governed by the more general provisions of . . . section 731 as amended by Assembly Bill 324."
The cited legislation was in response to the Supreme Court's decision in In re C.H., supra, 53 Cal.4th 94. We explained on the last appeal:
"In C.H., the California Supreme Court held that 'a juvenile court lacks authority to commit a ward to the DJF under section 731(a)(4) if that ward has never been adjudged to have committed an offense described in section 707(b), even if his or her most recent offense alleged in a petition and admitted or found true by the juvenile court is a sex offense set forth in [Penal Code] section 290.008(c) as referenced in section 733(c).' (C.H., supra, 53 Cal.4th at pp. 97-98.)
"The minor in C.H. had admitted a violation of Penal Code section 288, subdivision (a), and had made little progress in over three years on probation, admitting to four separate violations of probation for failing to comply with program placement rules. (C.H., supra, 53 Cal.4th at p. 98.) The juvenile court 'observed that C.H.'s commitment offense . . . was not an offense falling within the provisions of section 707(b), but concluded that after three years of failed attempts to help C.H. in three different reputable programs, commitment of C.H. to the DJF was necessary so that he would not have access to other potential victims and could receive the benefit of the DJF's adolescent sexual offender program.' (Id. at p. 99.) A unanimous court reversed the commitment of C.H. to the DJF, observing that '[a] ward's commission of an offense described in section 707(b) is . . . a prerequisite for a juvenile court's authority to order DJF commitment.' (Id. at p. 102; see id. at p. 109.)
"C.H. was published on December 12, 2011. In response to C.H., the Legislature passed, as urgency legislation to take effect immediately, Assembly Bill No. 324 (2011-2012 Reg. Sess.) (Assem. Bill 324). Assem. Bill 324 was signed by the Governor, and became effective, on February 29, 2012. [Citation.] The bill amended section 707 to authorize a DJF commitment when the ward 'has committed an offense described in subdivision (b) of section 707 or subdivision (c) of Section 290.008 of the Penal Code, and is not otherwise ineligible for commitment to the division under Section 733.' (Assem. Bill 324. § 1; see § 707, subd. (a)(4).) Thus, a ward similarly situated to C.H., but whose violation of Penal Code section 288, subdivision (a), occurs after February 29, 2012, may be committed to the DJF.
"Assem. Bill 324 also added section 1752.16: '(a) The chief of the Division of Juvenile Facilities, with approval of the Director of Finance, may enter into contracts with any county of this state for the Division of Juvenile Facilities to furnish housing to a ward who was in the custody of the Division of Juvenile Facilities on December 12, 2011, and whose commitment was recalled based on both of the following: [¶] (1) The ward was committed to the Division of Juvenile Facilities for the commission of an offense described in subdivision (c) of Section 290.008 of the Penal Code. [¶] (2) The ward has not been adjudged a ward of the court pursuant to Section 602 for commission of an offense described in subdivision (b) of Section 707. [¶] (b) It is the intent of the Legislature in enacting this act to address the California Supreme Court's ruling in [C.H.]' (Assem. Bill 324. § 3.)" (In re J.S., supra, A135214.)
J.S. reasons that "because [his] DJF commitment was recalled pursuant to C.H. [t]his places [him] squarely within the coverage of . . . section 1752.16, which provided for DJF 'housing' of minors whose DJF commitments were recalled pursuant to In re C.H. . . . section 731, as amended in 2012, should not be read so broadly as to render . . . section 1752.16 a superfluous nullity."
This is a false dichotomy. J.S. has already received the intended benefit of Assembly Bill No. 324 and section 1752.16: he was "housed" at DJF in order that he could participate in its JSOT program. When he completed that program, he was released from DJF and returned to the juvenile court. He thereafter violated the terms of his probation imposed by the juvenile court. In response, the juvenile court ordered him committed to DJF. The purpose of the commitment was confinement. If J.S. received additional sex offender treatment, well and good. But that was only a secondary consideration. In other words, the situation meant to be corrected by section 1752.16 no longer exists. Nothing in the language of either Assembly Bill No. 324 or section 1752.16 suggests that a subsequent commitment pursuant to section 731 would no longer be an option.
The Registration Requirement
J.S. advances three grounds for invalidating his lifetime registration as a sex offender.
First, he redirects his claim of "hearsay regarding new crimes" as reported by the probation officer (see fn. 4, ante), now arguing it was improperly considered in "requiring . . . sex offender registration." We have already rejected this claim in connection with the commitment decision. There is nothing more to add.
Second, he argues the registration requirement is unenforceable "because the juvenile court failed to warn [him] about lifelong sex offender registration before allowing him to admit violation [sic] of Penal Code section 288" back in 2009. On J.S.'s first appeal, he raised the identical issue, which we rejected because, even if factually correct, the claimed omission did not amount to prejudicial error. J.S. "requests that this Court revisit the issue, in light of further developments in this case, further developments in our understanding of the consequences of sex offender registration, and changes in panel composition."
The Attorney General responds that this reiterated claim is foreclosed as law of the case. We agree. " ' "The doctrine of the law of the case is this: That where, upon an appeal, the [reviewing] court, in deciding the appeal, states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal, and, as here assumed, in any subsequent suit for the same cause of action, and this although in its subsequent consideration this court may be clearly of the opinion that the former decision is erroneous in that particular." ' " (People v. Stanley (1995) 10 Cal.4th 764, 786.) There are very limited exceptions: "the doctrine will not be adhered to where its application will result in an unjust decision, e.g., where there has been a 'manifest misapplication of existing principles resulting in substantial injustice' [citation], or the controlling rules of law have been altered or clarified by a decision intervening between the first and second appellate determinations [citation]. The unjust decision exception does not apply when there is a mere disagreement with the prior appellate determination." (Id. at p. 787.)
J.S. does not come close to persuading us that we should relax the obvious application of the doctrine of the law of the case. Here, the timeframe is not the period between a first and a second appeal, it is the gap between the first and the third appeal. And we are taking about something that occurred eight years ago. The entirety of the record detailing J.S.'s subsequent conduct fails to establish anything approaching substantial injustice in requiring sex offender registration. The only intervening change of law, which is statutory, we address next. In sum, this appears to be "a mere disagreement with the prior appellate determination." (People v. Stanley, supra, 10 Cal.4th 764, 787.)
J.S.'s third and final argument is that "imposing lifetime sex offender registration for an offense committed by a twelve-year-old violates the Due Process Clause of the United States Constitution" in that "the registration requirement may . . . deprive" him of his "fundamental constitutional rights to travel interstate, maintain a home, and enjoy privacy and free association." (Italics added.) These precise consequences have not been rejected by our Supreme Court, but it, and other courts, have indicated such claims would probably be rejected.
In In re Alva (2004) 33 Cal.4th 254, the court held that lifetime registration for a misdemeanor offense (i.e., possession of child pornography) did not constitute punishment, and thus did not contravene either the state or the federal guarantees against cruel and/or unusual punishment. Lifetime registration was "tailored" and "designed to serve legitimate regulatory aims," to wit: "California has had some form of sex offender registration requirement since 1947. [Citation.] 'As this court has consistently reiterated: "The purpose of section 290 is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future. [Citation.]" [Citations.] . . . [¶] . . . The statute is thus regulatory in nature, intended to accomplish the government's objective by mandating certain affirmative acts.' " (Id. at pp. 288-289, 264.)"
"Sections 290 to 290.024, inclusive, shall be known, and may be cited, as the Sex Offender Registration Act. All references to 'the Act' in those sections are to the Sex Offender Registration Act." (Pen. Code, § 290, subd. (a).) "Any person who, on or after January 1, 1986, is discharged or paroled from the Department of Corrections and Rehabilitation to the custody of which he or she was committed after having been adjudicated a ward of the juvenile court . . . shall register in accordance with the Act." (Pen. Code, § 290.008, subd. (a).)
"Moreover, section 290's provisions are not excessive, and therefore punitive, insofar as they (1) apply mandatory registration to a wide range of sex-related crimes, without closely assessing the danger posed by each individual offense or offender, and (2) make the registration requirement lifelong. Given the general danger of recidivism presented by those convicted of criminal sexual misconduct, and the relatively minor burden registration represents, the Legislature may adopt a rule of general application for this class of offenders, and may guard against the demonstrated long-term risk of reoffense by imposing a permanent obligation on persons convicted of such crimes." (In re Alva, supra, 33 Cal.4th 254, 279-280.)
In re Taylor (2015) 60 Cal.4th 1019 did not involve registration or the definition of punishment. It did consider claims remarkably similar to those urged by J.S. ("the right to intrastate travel, to establish and maintain a home, and to privacy and free association within one's home"), that were directed against a statute prohibiting a convicted sex offender from residing within 2000 feet of schools or parks. (Id. at pp. 1036, 1023-1024.) The court held that, as applied to paroled adult sex offenders living in a highly urbanized county, the blanket prohibition "has imposed harsh and severe restrictions and disabilities on the affected parolees' liberty and privacy rights, however limited, while producing conditions that hamper, rather than foster, efforts to monitor, supervise, and rehabilitate these persons. Accordingly, it bears no rational relationship to advancing the state's legitimate goal of protecting children from sexual predators, and has infringed upon the affected parolees' basic constitutional right to be free of official action that is unreasonable, arbitrary, and oppressive." (Id. at p. 1038.)
Recently, a Court of Appeal determined lifetime sex offender registration for juveniles did not constitute punishment. (In re J.C. (2017) 13 Cal.App.5th 1201.)
Taylor is of very limited use to J.S. because it was an as-applied constitutional challenge made on the basis of a fully developed record that included findings of fact by a trial court. By contrast, J.S. is advancing, for the first time, what clearly amounts to a facial challenge to the lifetime registration requirement.
But it is a very recent statutory change that is dispositive. In October 2017 the Legislature enacted, and the Governor signed, Senate Bill No. 384. (Stats. 2017, ch. 541.) The impact of the measure is summarized in the Legislative Counsel's Digest: "This bill would, commencing January 1, 2021, . . . establish 3 tiers of registration based on specified criteria, for periods of at least 10 years, at least 20 years, and life, respectively, for a conviction of specified sex offenses, and 5 years and 10 years for tiers one and two, respectively, for an adjudication as a ward of the juvenile court for specified sex offenses . . . . The bill would, commencing July 1, 2021, establish procedures for termination from the sex offender registry for a registered sex offender who is a tier one or tier two offender and who completes his or her mandated minimum registration period . . . ."
In other words, as of 2021, registration for persons in J.S.'s situation will no longer be of lifetime duration, only a "mandated minimum registration period." That year will also be the final one that J.S. could be under the jurisdiction of the juvenile court. (See § 607, subd. (b) [juvenile court "may retain jurisdiction" over specified types of wards "until that person attains 25 years of age if the person was committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities"].) Thus, J.S. is asking that we entertain a facial constitutional challenge to something that may not even apply to him. We decline to undertake such a speculative task in the first instance.
DISPOSITION
The order of commitment is affirmed.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.