1 Filed 1/15/14 P. v. Cliff B. CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent,

v. CLIFF B., 1 Defendant and Appellant. A136992

(San Mateo County Super. Ct. No. SC074937A)

I NTRODUCTION Defendant Cliff B. appeals an order m odifying the terms and conditions of his probation pursuant to Pe nal Code, section 1203.067, 2 which sets forth various new probation conditions for registered sex o ffenders. The order modifying probation required that he attend an approved sex offender management treatment program (program), pay for the program subject to his ability to pay and waive any privilege against self-incrimination, as well as a ny psychotherapist-patient privilege, while participating in the program. Defendant challenges the imposition of these additional conditions of probation on jurisdictional and federal and state constitutional grounds, specifically asserting that (1) the modification violated the ex post facto clauses of the

1 At defendant’s request, and due to the na ture of the underlying offenses of which he was convicted, we do not use hi s full name in this opinion. ( See In re E.J. (2010) 47 Cal.4th 1258, 1267, fn. 4, [in “a departure fro m [its] usual practice (see Cal. Style Manual (4th ed. 2000) § 5:9, pp. 17 9–180),” our Supreme Court gr anted petitioners’ request to not disclose their identities, “g iven the particular subject matter of [the] proceedings”].)

2 Further statutory references are to the Penal Code unless otherwise noted.2 federal and state constitutions; (2) the m odification was in excess of the court’s jurisdiction because no change in circumstances occurred au thorizing such modification; (3) the statutory presumption of prospectiv ity under section 3 precludes retroactive application of section 1203.067 in this case; and, (4) th e compulsory waiver of the privilege against self-incrimination violates the Fifth Amendment and article I, section 15

of the California Constitution.

We conclude that revised section 1203. 067 must be read to apply prospectively under section 3 and, therefore, cannot be applied retroactiv ely to change the terms and conditions of probation for defe ndant. Because we reverse the trial court’s modification order on that basis alone, we need not address defendant’s other jurisdictional and constitutional arguments. 3

F ACTUAL AND P ROCEDURAL B ACKGROUND On August 12, 2008 , the San Francisco District A ttorney filed an information charging defendant with unlawful sexual inte rcourse with a drugged person (§ 261, subd. (a)(3)), and unlawful sexual intercourse with an unconscious person (§ 261, subd. (a)(4)). 4 On July 12, 2011, pursuant to a negot iated disposition, defendant pleaded guilty to rape of a drugged person. On August 19, 2011, the San Francisco County Superior Court suspended imposition of sentence and placed defendant on formal probation for a period of three years. As co nditions of probation, defendant was required to register as a

sex offender under section 290 and submit to AIDS testing under section 1202.1. On November 22, 2011, the San Francisco Coun ty Superior Court granted the probation

officer’s motion to transfer the case to de fendant’s county of residence in San Mateo County.

3 (See Santa Clara County Local Transpo rtation Authority v. Guardino (1995) 11 Cal.4th 220, 230 [“ ‘A fundamental and lo ngstanding principle of judicial restraint requires that courts avoid reaching constitutiona l questions in advance of the necessity of deciding them.’ ”].)

4 The facts of the underlying offense ar e not relevant to the issue on appeal.3 Subsequently, on Se ptember 11, 2012, the probatio n officer petitioned the San Mateo County Superior Court to modify the terms and conditio ns of defendant’s probation pursuant to sections 1203.2 and 1203.3. The petition stated: “As of July 1, 2012, the law requires the imposition of specific sex offender conditions to all individuals on probation who are required to register as a sex offender pursuant to Section 290 . . . . Pursuant to Section 1203.067(b )(1) . . . these conditions are to be imposed retroactively to all individuals currently on probation. This includes those who have already completed a non certified sex offender program. [¶] The . . . defendant has been advised of the legal requirement to modify his conditions of pr obation in accordance with the law and has requested a hearing before the Court.” The petition also asserts in summary: “This case was jurisdictionally transferred to San Ma teo County on December 30, 2011, with minimal conditions of probation ordered. Th ere is no search and seizure, no chemical testing or abstain from alcohol, and no trea tment conditions of any kind imposed. As such, supervision of the defenda nt and his progress in the co mmunity is limited. He has been cooperative and compliant with pr obation appointments and directives.” Following filing of the pe tition to modify conditions of probation, the trial court appointed counsel for defendan t, set a briefing schedule and calendared the matter for a hearing on October 12, 2012. At the hearing, and after entertaining argument of counsel,

the trial court modified the terms and conditi ons of defendant’s prob ation to include the provisions of amended Penal Code section 1203.067, subdivision (b). The court stayed the order of modification for 30 days. The or der of modification stated: “1. Pursuant to Section 290.09 of the Penal Code, you are re quired to participate in and successfully complete an approved sex offender manage ment treatment program. 2. Pursuant to

Section 1203.067 of the Pena l Code, the participation in an approved sex offender management treatment program will be for a minimum of one year or up to the entire term of supervised probation, as dete rmined by the sex offender management professional in consultation with the probation officer and as approved by the Court. 3. Submit to random polygraph examinatio ns and waive any privilege against selfincrimination and participati on in said polygraph examinati ons. 4. The psychotherapist-4 patient privilege shall be waived, to en able communication between the sex offender management professionals and probation officer.” On November 1, 2012, defendant filed a notice of appeal and on November 8, 2012, filed a petition for writ of supersedeas. On January 23, 2013, we granted the writ of supersedeas and stayed the trial c ourt’s probation modification order pending determination of the appeal.

D ISCUSSION A. Applicable Prior and Cu rrent Statutory Provisions In July 2008, wh en defendant committed a felony vi olation of section 261, former section 1203.067 provided: “If a defendan t is granted probation pursuant to subdivision (a), the court shall order the de fendant to be placed in an appropriate treatment program designed to deal with child molestation or sexu al offenders, if an appropriate program is available in the county.” (F ormer § 1203.067, subd. (b), adde d by Stats. 1994, ch. 918, § 1.) Former section 1203.067, subdivisi on (c) further provided: “Any defendant ordered to be placed in a treatment progr am pursuant to subdiv ision (b) shall be responsible for paying the expens e of his or her participation in the treatment program as determined by the court. The court shall take into consideration the ability of the defendant to pay, and no defendant shall be denied probation because of his or her inability to pay.” During defendant’s term of probation, the Legislatur e amended section 1203.067 as part of the Chelsea King Child Predator Prevention Act of 2010 (Chelsea King Act) (Stats. 2010, ch. 219, § 1), to provide, in relevant part: “(b) On or after July 1, 2012, the term s of probation for pers ons placed on formal supervised probation for an o ffense that requires registration pursuant to Sections 290 to 290.023, inclusive, shall include all of the following: “(1) Persons placed on formal superv ised probation prior to July 1, 2012, shall participate in an approved sex o ffender management program, following the standards developed pursuant to Section 9003, for a period of not less than one year or the remaining term of probation if it is less than one year. The length of the period in the5 program is to be determined by the certified sex offender management professional in consultation with the probation offi cer and as approved by the court. “(2) Persons placed on formal supervis ed probation on or after July 1, 2012, shall successfully complete a sex offender management prog ram, following the standards developed pursuant to Section 9003, as a condition of releas e from probation. The length of the period in the program shall be not less th an one year, up to the entire period of probation, as determined by the certifie d sex offender management professional in consultation with the probation offi cer and as approved by the court. “(3) Waiver of any privilege agains t self-incrimination and participation in polygraph examinations, which shall be part of the sex offender management program. “(4) Waiver of any psychother apist-patient privilege to enable

communication between the sex offender ma nagement professional and supervising probation officer, pursuan t to Section 290.09. “(c) Any defendant ordered to be placed in an approve d sex offender management program pursuant to subdivision (b) shall be responsible for paying th e expense of his or her participation in the program as determined by the court. The court shall take into consideration the ability of the defendant to pay, and no defenda nt shall be denied probation because of his or her inability to pay.” (§ 1203.067, subds. (b)-(c), amended by Stats. 2010, ch. 219, § 17, eff. Sept. 9, 2010.) The effective date of the amended statute was September 9, 2010, but its provisions did not become ope rative until July 1, 2012. (See § 12 03.067, subd. (b).) 5 B. Section 3 and the Presumption th at Statutes Operate Prospectively “Whether a statute operates prospectively or retroactively is, at least in the first instance, a matter of legislativ e intent. When the Legislature has not made its intent on

5 “ ‘ “The effective date [of a statute] is . . . the date upon which the statute came into being as an existing law.” [Citation.] “[ T]he operative date is the date upon which the directives of the statute may be actually implemented.” [Cita tion.] Although the effective and operative dates of a statute are often the same, the Legislature may “postpone the operation of certain statutes until a later time.” [Citat ion.]’ [Citation.]” ( People v. Alford (2007) 42 Cal.4th 749, 753, fn. 2.)6 the matter clear with respect to a particular st atute, the Legislature’s generally applicable declaration in section 3 provides the defau lt rule: ‘No part of [the Penal Code] is retroactive, unless expressly so declared.’ We have described section 3, and its identical counterparts in other codes (e.g., Civ.Code, § 3; Code Civ. Proc., § 3), as codifying ‘the time-honored principle . . . that in the absenc e of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature . . . must have intended a retr oactive application.’ [Citation.] In applying this principle, we have been cautious not to infer retroactive intent from vague phrases and broad, general language in statutes. [Citations.] Consequently, ‘ “ a statute that is ambiguous with respect to retroactive applicati on is construed . . . to be unambiguously prospective .” ’ [Citations.]” ( People v. Brown (2012) 54 Cal.4th 314, 319–320 ( Brown ), italics added.) Applying these principles to the stat ute at bar, the parties reach different conclusions on the retroactivity issue. The People contend the statute is unambiguous as to legislative intent, asserting that because the statute specifically states probationers placed on probation before July 1, 2012 must participate in approved sex offender management treatment programs, the statute mu st be construed to apply retroactively. Defendant, on the other hand, asserts that vi ewed in light of section 3’s presumption against retroactivity, the most tenable cons truction is that revised section 1203.067 applies to all probationers whose offenses occurred on or after September 9, 2010. Our colleagues in Division 2 of this cour t recently addressed this legal conundrum

in People v. Douglas (2013) 220 Cal.App.4th 1068 ( Douglas ). The Douglas court resolved the issue in favor of the similarly-situated appellant in that case, concluding the People’s interpretation “completely ignores bo th section 3’s presump tion of prospectivity and the context in which the amendment of section 1203.067 came about.” ( Douglas,

supra, at pp. 1075–1076.)

As the Douglas court further explained, “The revise d statute was enacted as part of Assembly Bill No. 1844 (2009 –2010 Reg. Sess.), the Chel sea King Child Predator Prevention Act of 2010 (Chelsea’s Law) (Sta ts. 2010, ch. 219), which altered numerous7 statutes governing sex offenses and sex offenders. Although the bill was enacted in September 2010 as urgency legislation, intended to take effect immediately ( id., at § 29), [fn. omitted] the section 1203. 067 amendments did not beco me operative un til July 2012, almost two years later. The apparent reason for this delayed implem entation is reflected in other stated requirements of the bill (s ee, e.g., § 9003 [requiring development and updating of standards for cer tification of sex offender ma nagement professionals and programs]), which were prerequisites to a pplication of the new provisions of section 1203.067. There is nothing in this legislative history th at provides ‘ “ ‘a clear and compelling implication’ ” ’ that the Legislat ure intended the revised statute to apply retroactively. [Citation.] [¶] Given this cont ext, the most reasonable interpretation of the language of amended section 1203.067, subdivision (b), rega rding ‘[p]ersons placed on formal probation prior to July 1, 2012,’ is that, for those probationers whose offenses occurred between the effective date of Sept ember 9, 2010, and the operative date of July 1, 2012, their particip ation in—though not necessarily completion of —‘an approved sex offender management program’ would be required. [ 6 ] [Citations.] This interpretation fulfills the Legislature’s inten tion that this portion of the urgency legisla tion would take effect immediately upon enactment, applying to probationers whose offenses occurred on or after that date, even th ough its provisions could not actually be implemented until July 1, 2012. [Citations.]” ( Douglas, supra, 220 Cal.App.4th at p. 1076.) We agree with the anal ysis propounded by the Douglas court on this point and conclude the statutory language does not clearly indicate a le gislative intent that section 1203.067 is to be applied retroactively to probationers whose crimes occurred before its effective date. Moreover, the People fail to identify anything in th e legislative history,

6 However, there is a further ambiguity in 1203.067 as to whether probationers, whose offenses occurred between the effect ive date of September 9, 2010 and the operative date of July 1, 2012, would be re quired to waive the pr ivilege against selfincrimination and the psychotherapist-patient privilege under subsections (3) and (4) because those subsections are go verned by the date set forth in subdivision (b)—July 1, 2012.8 and our research revealed nothing, which clearl y indicates the statute is intended to apply retroactively. (See Brown, supra, 54 Cal.4th at pp. 319–320.) Furthermore, whereas we do not reach defendant’s Fifth Amendment claim, we acknowledge that a retroactive application of the statute requiring defendant to waive his privilege against self-incrimination (see § 1203.067, subd. (b )(3)), would arguably implicate the federal and state Constitutions’ prohibition against ex post facto laws (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9) by making punishment for the crime more burdensome, (see Collins v. Youngblood (1990) 497 U.S. 37, 41–42 [retrospective statute making punishment for a crime more bur densome is an ex post facto law]). This constitutional concern further supports a finding of nonretroactivity under section 3. (See People v. Superior Court ( Romero ) (1996) 13 Cal.4th 497, 509 [“ ‘If a statute is susceptible of two constructions, one of wh ich will render it constitutional and the other unconstitutional in whole or in part, or rais e serious and doubtful constitutional questions, the court will adopt the cons truction which, without doi ng violence to the reasonable meaning of the language used, will render it valid in its entirety, or free from doubt as to its constitutionality, even though the other constr uction is equally reasonable. [Citations.] The basis of this rule is the presumption that the Legislature intended, not to violate the Constitution, but to enact a valid statute with in the scope of its constitutional powers.’ [Citations.]”].) In sum, there is nothing in either the language of the statute or its legislative history clearly indicating a legislative intent for revised section 1203.067 to be applied retroactively to probationers whose crimes occurred before its effective date. (See Brown, supra , 54 Cal.4th at pp. 319–320; Alford, supra , 42 Cal.4th at p. 754.) Moreover,

to construe the statute as a pplying to those probationers wo uld raise serious constitutional questions under the federal and state ex post fact o clauses. Therefore, in keeping with the mandate of section 3, revised section 1203.067 must be construed as “ ‘ “unambiguously prospective” ’ ” ( Brown, supra, 54 Cal.4th at p. 320), ap plying to probationers whose

crimes were committed on or after the statut e’s effective date of September 9, 2010.

Defendant’s offense occurred before the effec tive date of the statute. Therefore, the9 provisions of revised section 1203.067 were improperly applied to him and must be

stricken.

D ISPOSITION The trial court’s order modifying the conditions of defendant’s probation is reversed and the matter remanded for further pr oceedings consistent w ith this opinion. The writ of supersedeas is hereby dissolved with immediate effect.

_ _____________________ Becton, J.*

We concur:

__________ ____________ Dondero, Acting P.J.

__________ ____________ Banke, J.

* Judge of the Contra Costa County Superi or Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.