In re A.G.

Filed 4/28/09 In re A.G. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re A.G., a Person Coming Under
the Juvenile Court Law.
_____________________________________
THE PEOPLE,
Plaintiff and Respondent,
v.
A.G.,
Defendant and Appellant.
B200748
(Los Angeles County
Super. Ct. No. FJ37215)
APPEAL from an order of the Superior Court of Los Angeles County, Shep A.
Zebberman, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Mary Bernstein, under appointment by the Court of Appeal, for Defendant and
Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D.
Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
________________________

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A.G., a minor, appeals from the order of wardship (Welf. & Inst. Code, § 602)
entered following a determination that he committed a forcible lewd act upon a child
(Pen. Code, § 288, subd. (b)(1)). The court ordered appellant committed to the Division
of Juvenile Justice for a maximum theoretical period of confinement of eight years. We
affirm the order of wardship.
FACTUAL SUMMARY
1. The People’s Evidence.
a. The Present Offense.
1) The First Incident.
Appellant was born on January 5, 1985.1 G.M., who was born in December
1992, was appellant‟s niece. In 2000, G.M., appellant, and other relatives lived at the
house of G.M.‟s grandmother. G.M. testified about an incident which occurred at the
house in 2000, and which, according to her, must have occurred in the fall because the
days were cloudy. The first incident occurred when she was seven years old, and perhaps
was about to turn eight years old. She testified the incident must have occurred in
November, but she also indicated that she was not sure about the month. The first
incident occurred during a weekend.
As to this first incident, G.M. and appellant were sitting together in the garage and
playing hide and seek. Appellant was 15 years old, and G.M. was 7 years old. At one
point while the two were in the garage, appellant kissed G.M.‟s lips. He had her sit on
his lap, but she got off because she felt uncomfortable.
G.M. sat next to appellant. He took out his penis, grabbed G.M.‟s hand, and put it
on his penis. G.M. resisted somewhat and was somewhat afraid, but she did not know
why she was afraid. When asked whether appellant used force when appellant grabbed
her hand, G.M. testified appellant used “somewhat of force[,]” meaning “if I didn‟t want
my hand to be placed there and he grabbed my hand and placed it there . . . .” (Sic.)
1 There is no dispute that this was appellant‟s birth date. We note that, in
appellant‟s opening brief, his statement of the case and statement of facts reflect the
above date as his birth date.

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When asked what she meant by saying appellant “somewhat grabbed [her] hand,” she
replied she meant she resisted but did not resist “as much.”
Appellant eventually stopped what he was doing, put his finger to his lips, and told
her not to tell anyone what had happened. G.M. thought this meant that what had
happened was a secret, and she told no one about the incident.2 Appellant was heavier,
taller, and stronger than G.M.
2) The Second Incident.
G.M. testified that a second incident occurred after school during early spring.
She was about the same age then as she was during the first incident. At the time of the
second incident, appellant was 16 years old and G.M. was 8 years old. G.M. testified
there were perhaps a couple of weeks to a month between the first and second incidents,
and she was the same age during both.
During the second incident, appellant approached G.M. behind the garage, kissed
her, then French-kissed her. G.M. pushed appellant away and said no. Appellant took
out his penis and told her to put her mouth on it. G.M. told him no, but he eventually
convinced her to do it. She put her mouth on appellant‟s penis but quickly took her
mouth off and pushed him away. Appellant looked upset and escorted her from behind
the garage.
3) The Third Incident.
G.M. testified a third incident occurred when she was around nine years old. The
incident occurred near the hot or warm days, i.e., around spring. G.M. testified that
nearly two months had passed between the second and third incidents. She also testified
there were four or five months between the second and third incidents. She further
testified the third incident occurred during the beginning of the year. G.M. testified she
was nine years old, or about nine years old, when the third incident occurred. She later
testified she was eight years old at the time of the third incident.
2 G.M. erroneously told police that appellant pulled down her pants during this
incident. She had confused the multiple incidents which had occurred. G.M. had
received therapy, and believed her memory was more clear at the adjudication.

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G.M. testified as follows concerning the third incident. The adults were gone and
G.M. was told that appellant was in charge. Appellant and G.M. entered the garage, and
appellant kissed her. He took out his penis and pulled down G.M.‟s jeans and underwear.
She did not resist. She did not know whether what was occurring was good or bad.
Appellant tried to have G.M. sit on his hard penis, but he did not penetrate her.
G.M. cried because it hurt, and appellant stopped. Appellant told her to bend over a
wardrobe, then he separated her buttocks and looked at them. His hands tickled her and
she felt uncomfortable. Her pants and underwear were around her ankles. Appellant
suddenly stopped, told her to put her clothes on, and later told her to keep quiet about
what had happened. G.M. thought appellant would be mad at her if she did not keep
quiet. She thought there was nothing she could do to stop appellant‟s abuse, and she did
not feel that she could protect herself. G.M. considered appellant to be somewhat of an
adult because he was the eldest.
As to each of the three incidents, G.M. felt that the fact that she considered
appellant to be somewhat of an adult impacted her responses to him. If G.M.‟s mother or
grandmother came home and appellant said that G.M. had been bad, she would be
punished. P.G., G.M.‟s mother, was very violent and would whip G.M. with a belt.
G.M. did not tell P.G. what had occurred because she never listened to G.M. and never
bothered to ask what was wrong. G.M. was afraid to tell her grandmother about the
abuse because G.M. thought her grandmother would become angry with P.G. G.M. and
P.G. were staying with G.M.‟s grandmother and had nowhere else to go.
b. Appellant’s Uncharged Offense Against M.M.
M.M., who was born in July 1995, testified she was five years old when she
lived with, inter alia, her grandmother, G.M., and appellant. M.M. moved out of the
house when she was six years old. Appellant abused M.M. The first incident occurred in
appellant‟s room. Appellant told M.M. to lie on his bed, then he pulled off her pants and
underwear. Appellant, whose clothes were off, inserted his penis inside her. Appellant‟s
penis was erect and it hurt M.M. M.M. cried and told appellant to get off of her. He did
not then comply, but eventually did.

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2. Defense Evidence.
In defense, V.G., appellant‟s sister, testified that in about 1999 or 2000, she lived
with G.M. and appellant. V.G. denied seeing inappropriate sexual conduct between
appellant and anyone. However, V.G. also testified that M.M. had never lied to V.G.
G.M. had emotional problems and had not always been truthful with V.G. P.G. was
occasionally violent towards G.M.
M.G., another sister of appellant, lived at the residence from 1996 through 2000.
She denied that appellant was left in charge of the children. She never saw appellant do
anything sexually inappropriate. According to M.G., G.M. had a reputation for lying, and
G.M. and M.M. had lied to M.G. On one occasion, G.M. lied and said a man had
followed her home. There were occasions when P.G. was not the most responsible
mother, and M.G. and P.G. occasionally argued about the latter being violent towards her
children.
CONTENTIONS
Appellant claims (1) the trial court erroneously admitted evidence of appellant‟s
sexual act involving M.M., (2) there was insufficient evidence of force, duress, fear, and
menace, (3) there was insufficient evidence appellant was 16 years old at the time of the
offense, (4) the trial court erroneously committed appellant to DJJ, (5) the referee lacked
authority to conduct appellant‟s dispositional hearing, (6) appellant was entitled to a jury
trial, (7) imposition of the sex registration requirement violated his right to equal
protection, and (8) imposition of the residence restriction violated the Ex Post Facto
Clause of the federal Constitution.3
DISCUSSION
1. The Trial Court Properly Admitted Evidence of Appellant’s Sexual Act Involving M.M.
a. Pertinent Facts.
During trial, M.M. testified, in pertinent part, that appellant began touching her
when she was five years old. Appellant objected the testimony was irrelevant, excludable
3 Appellant‟s first and second claims are contained in his opening brief. His third,
fourth, and fifth claims are contained in his supplemental opening brief. His last three
claims are contained in his second supplemental opening brief.

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under Evidence Code section 352, and violative of his right to due process. Appellant
argued that the district attorney‟s office had considered and had rejected for prosecution
any allegations of sexual offenses by appellant against M.M. The prosecutor indicated
the evidence was admissible under Evidence Code section 1108. The court overruled
appellant‟s objection. M.M. testified as indicated in the Factual Summary.
b. Analysis.
Appellant claims the trial court erred by refusing to exclude, under Evidence Code
section 352, M.M.‟s testimony and the testimony was irrelevant. We disagree. An
appellate court applies the abuse of discretion standard of review to any ruling by a trial
court on the admissibility of evidence, including a ruling concerning relevance or
Evidence Code section 352. (People v. Waidla (2000) 22 Cal.4th 690, 717, 723-725.) As
to the relevance issue, our Supreme Court observed in People v. Falsetta (1999)
21 Cal.4th 903 (Falsetta), “evidence of a defendant‟s other sex offenses constitutes
relevant circumstantial evidence that he committed the charged sex offenses.” (Id. at
p. 920, italics added.) The trial court did not abuse its discretion by admitting into
evidence as relevant the challenged evidence.
As propensity evidence under Evidence Code section 1108, appellant‟s rape of
M.M.4 was highly probative of his propensity to engage in sexual misconduct with his
female relatives. (Cf. People v. Soto (1998) 64 Cal.App.4th 966, 991.) Notwithstanding
appellant‟s argument to the contrary, the evidence of the rape came from an independent
source--M.M.--since appellant‟s sexual act towards her appears to have occurred in 2000,
but, as discussed later, two of the sexual acts appellant committed against G.M. appear to
have occurred in 2001.
Appellant claims evidence of his rape of M.M. was more serious and
inflammatory than the present offense, he was not convicted of the rape, and this
increased the prejudice which resulted from the trial court receiving M.M.‟s testimony.
Faced with a similar claim, the court in People v. Frazier (2001) 89 Cal.App.4th 30,
observed, “The charged and uncharged crimes need not be sufficiently similar that
4 Appellant concedes M.M. testified that appellant put his penis in her vagina.

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evidence of the latter would be admissible under Evidence Code section 1101, otherwise
Evidence Code section 1108 would serve no purpose. It is enough the charged and
uncharged offenses are sex offenses as defined in section 1108. [Fn. omitted.]” (People
v. Frazier, supra, at pp. 40-41.) In the present case, the charged offense and the
uncharged rape are sex offenses as defined in Evidence Code section 1108,
subdivisions (a), and (d)(1)(A).
The fact that appellant was not convicted of the rape of M.M. arguably may have
increased the risk that a jury would convict him of the present offense to punish him for
the prior one. However, the present case involved a court trial. It is presumed the trial
court knew and followed applicable law. (Ross v. Superior Court (1977) 19 Cal.3d 899,
913.) This includes the legal principles that the People had the burden to prove each
element of the present offense beyond a reasonable doubt, and that the court could not
convict appellant of any crime with which he was not charged.
The 2000 rape was not too remote in time (cf. People v. Ewoldt, (1994), 7 Cal.4th
380, 405; People v. Branch (2001) 91 Cal.App.4th 274, 284-285), and usually any
remoteness of evidence goes to weight, not admissibility. (People v. Archerd (1970)
3 Cal.3d 615, 639.) The introduction of M.M.‟s testimony did not result in an undue
consumption of time. (Cf. People v. Frazier, supra, 89 Cal.App.4th at p. 42.) Further,
this is not a case in which the evidence of the rape of M.M. was “cumulative regarding an
issue that was not reasonably subject to dispute.” (People v. Ewoldt, supra, at p. 406.)
Appellant‟s defense placed G.M.‟s credibility in issue. Notwithstanding appellant‟s
suggestion to the contrary, whether the People brought, or should have brought, charges
against appellant based on the evidence of his rape of M.M. was irrelevant.
On this record, we believe the trial court understood and fulfilled its
responsibilities under Evidence Code section 352, and the trial court did not abuse its
discretion by refusing to exclude, under that section, evidence of appellant‟s 2000 rape of
M.M. as propensity evidence.
2. There Was Sufficient Evidence that Appellant Committed the Present Offense.
Appellant does not dispute there was sufficient evidence that he committed a lewd
or lascivious act in violation of Penal Code section 288, subdivision (a). He claims only

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that there was insufficient evidence that he committed said act(s) by use of the requisite
force, violence, duress, menace, or fear for purposes of Penal Code section 288,
subdivision (b)(1). We reject his claim.
Penal Code section 288, states, in relevant part, “(a) Any person who willfully
and lewdly commits any lewd or lascivious act, including any of the acts constituting
other crimes provided for in Part 1, upon or with the body, or any part or member thereof,
of a child who is under the age of 14 years, with the intent of arousing, appealing to, or
gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a
felony . . . . [¶] (b)(1) Any person who commits an act described in subdivision (a) by
use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury
on the victim or another person, is guilty of a felony. . . .”
“ „Force‟ as used in [the context of Penal Code section 288, subdivision (b)(1)]
means „physical force substantially different from or substantially greater than that
necessary to accomplish the lewd act itself.‟ (People v. Cicero (1984) 157 Cal.App.3d
465, 474 . . . .)” (People v. Cochran (2002) 103 Cal.App.4th 8, 13.)
“ „Duress‟ as used in this context means „a direct or implied threat of force,
violence, danger, hardship or retribution sufficient to coerce a reasonable person of
ordinary susceptibilities to (1) perform an act which otherwise would not have been
performed or, (2) acquiesce in an act to which one otherwise would not have submitted.‟
(People v. Pitmon (1985) 170 Cal.App.3d 38, 50 . . . ; [citation].)” (People v. Cochran,
supra, 103 Cal.App.4th at p. 13.)
Moreover, “ „The total circumstances, including the age of the victim, and [her]
relationship to defendant are factors to be considered in appraising the existence of
duress.‟ (People v. Pitmon, [170 Cal.App.3d 38,] 51.) Other relevant factors include
threats to harm the victim, physically controlling the victim when the victim attempts to
resist, and warnings to the victim that revealing the molestation would result in
jeopardizing the family. (People v. Senior [(1992)] 3 Cal.App.4th 765, 775; People v.
Schulz [(1992)] 2 Cal.App.4th 999, 1005.)” (People v. Cochran, supra, 103 Cal.App.4th
at pp. 13-14.)

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“[I]n People v. Pitmon, supra, 170 Cal.App.3d 38, 47-48, 51, the court found
sufficient evidence of duress despite the victim‟s testimony the defendant did not use
force or violence and never threatened to hurt her. The court stated that „at the time of
the offenses, [the victim] was eight years old, an age at which adults are commonly
viewed as authority figures. The disparity in physical size between an eight-year-old and
an adult also contributes to a youngster‟s sense of [her] relative physical vulnerability.‟
(Id. at p. 51; see also People v. Sanchez (1989) 208 Cal.App.3d 721, 747-748 . . . [duress
found where defendant molested eight-year-old granddaughter repeatedly over a three-
year period and victim viewed defendant as a father figure]; People v. Superior Court
(Kneip) (1990) 219 Cal.App.3d 235, 239 . . . [„Where the defendant is a family member
and the victim is young, . . . the position of dominance and authority of the defendant and
his continuous exploitation of the victim‟ is relevant to determining duress].)” (People v.
Cochran, supra, 103 Cal.App.4th at p. 14.)
In the present case, G.M. testified concerning three incidents. As to the first
incident, and the issue of force, appellant did not merely cause G.M.‟s hand to touch his
penis. He grabbed her hand and put it on his penis, used force somewhat, and she
resisted his efforts to put her hand there. As to duress, G.M. was seven years old, and
appellant was her 15-year-old uncle. She resisted appellant somewhat, but stopped
because she was afraid. The two were in a secluded location, and he told her not to tell
anyone what had happened. Appellant was heavier, much taller, and stronger than G.M.
The trial court reasonably could have concluded that this contributed to G.M.‟s sense of
relative physical vulnerability.
As to the second incident and the issue of duress, the second incident, like the first
incident, occurred in a secluded location: behind the garage. G.M. was eight years old,
and appellant was her now 16-year-old uncle. After appellant French-kissed G.M., she
resisted appellant, pushing him away, and said no. Nonetheless, appellant took out his
penis, told her to put her mouth on it, and she did so. Again, the trial court reasonably
could have concluded that because appellant was heavier, much taller, and stronger than
G.M., this contributed to her sense of vulnerability.

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As to the third incident, the issue of duress, and the issue of fear of immediate
bodily injury, that incident occurred in the secluded location of the garage. G.M. was
nine years old, and appellant was 16 years old. When appellant had G.M. sit on his penis,
she cried, indicating she did not like what was happening.
G.M. thought nothing could be done to stop appellant‟s abuse, which evidenced
appellant‟s dominance and continuous exploitation of G.M. G.M. feared that if she
revealed what had been happening, she and her mother would have to leave the home,
thus jeopardizing the family.
The adults were gone, G.M. was told appellant was in charge, and she considered
him to be somewhat of an adult. Again, his superior physical stature increased her sense
of vulnerability, and the trial court reasonably could have concluded that G.M. viewed
appellant as somewhat of an authority figure. Appellant told her to be quiet about what
had happened. G.M. thought appellant would be angry with her if she did not keep quiet.
As to each of the three incidents, G.M. felt that the fact that she considered
appellant to be somewhat of an adult impacted her responses to him. If G.M.‟s mother or
grandmother came home and appellant said that G.M. had been bad, she would be
punished. P.G., G.M.‟s mother, was very violent and would whip G.M. with a belt.
G.M. did not tell P.G. what had occurred because she never listened to G.M. and never
bothered to ask what was wrong. G.M. was afraid to tell her grandmother about the
abuse because G.M. thought her grandmother would become angry with P.G. G.M. and
P.G. were staying with G.M.‟s grandmother and had nowhere else to go.
We conclude there was sufficient evidence that appellant committed a forcible
lewd act upon a child, including sufficient evidence of the requisite “force, violence,
duress, menace, or fear of immediate and unlawful bodily injury on the victim” within
the meaning of Penal Code section 288, subdivision (b)(1). (Cf. People v. Cochran,
supra, 103 Cal.App.4th at pp. 13-16, fn. 6; People v. Bolander (1994) 23 Cal.App.4th
155, 158-161; People v. Knox (1988) 204 Cal.App.3d 197, 203; People v. Pitmon, supra,
170 Cal.App.3d at pp. 45, 47-51.)

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3. There Was Sufficient Evidence That Appellant Was 16 Years Old When He Committed
the Offense.
Appellant claims the present offense cannot in the future be used as a prior felony
conviction for purposes of the “Three Strikes” law because, according to appellant, he
was not 16 years old at the time of the present offense.5 Assuming without deciding that
the issue is ripe for review, we reject appellant‟s claim.
For purposes of appellant‟s present claim, there is no dispute as to the sufficiency
of the evidence that, during each of the three incidents to which G.M. testified, appellant
committed an act which violated Penal Code section 288, subdivision (b)(1). Nor is there
any dispute that appellant was 16 years old on January 5, 2001, and that if any one of the
above mentioned three acts occurred after that date, there is sufficient evidence that the
present offense could qualify as a “prior juvenile adjudication” and a “prior felony
conviction” for purposes of the Three Strikes law. Appellant argues there is insufficient
evidence that the present offense could qualify as a prior felony conviction because he
may have committed all three acts prior to January 5, 2001, i.e., before he was 16 years
old.
Our power as an appellate court begins and ends with the determination whether,
on the entire record, there is substantial evidence, contradicted or uncontradicted, to
support the trial court‟s finding. (Cf. People v. Hernandez (1990) 219 Cal.App.3d 1177,
1181-1182.)
G.M. testified the second incident occurred in early spring, she was eight years
old, and appellant was 16 years old. According to this testimony, the second sexual
incident would have occurred in the spring of 2001, i.e., after appellant became 16 years
old on January 5, 2001. The third incident, of course, occurred later. We conclude there
5 Penal Code section 667, subdivision (d)(3)(A) states “A prior juvenile
adjudication shall constitute a prior felony conviction for purposes of sentence
enhancement if: [¶] (A) The juvenile was 16 years of age or older at the time he or she
committed the prior offense.” Appellant does not claim that, after the court in the present
case found that he committed the present offense, he was convicted of a later offense.
We assume without deciding that appellant‟s claim that the present offense does not
qualify as a prior felony conviction is not premature.

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was sufficient evidence that appellant‟s present offense could qualify as a “prior juvenile
adjudication” and thus a “prior felony conviction” for purposes of the Three Strikes law,
including sufficient evidence that appellant was 16 years of age or older when he
committed the present offense.
4. The Court Properly Committed Appellant to the Division of Juvenile Justice.
a. Pertinent Facts.
The probation report dated November 30, 2005, reflects that when appellant was
16 years old, he was arrested for vandalism. In January 2002, the court sustained a
petition alleging this offense, and the court ordered appellant placed home on probation.
When appellant was 19 years old, he was arrested for possession of a controlled
substance. The court ordered him placed on deferred entry of judgment.
The probation officer indicated, in pertinent part, as follows. The present
allegations against appellant were extremely serious. Although appellant did not have an
extensive arrest record, he had associated with gangs. The abuse against G.M. caused
irreversible harm to her. Appellant was participating in a counseling program, as well as
other rehabilitative services, when he abused G.M.
The probation officer also indicated as follows. Neither G.M.‟s mother nor
appellant‟s mother provided adequate supervision. Appellant was entrusted to babysit
G.M., and used his age and size to abuse her. Appellant was now 20 years old and might
still be residing with his mother. The probation officer was extremely concerned that
appellant‟s mother had a five-year-old daughter, and appellant‟s mother had not asked the
daughter whether appellant had molested her. The daughter and appellant‟s three-year-
old nephew could become potential victims.
The probation officer opined appellant was a threat to younger children in his
mother‟s residence and in the community. Moreover, because appellant‟s then-current
whereabouts were unknown, he had failed to report to the probation officer as directed
and appellant was a flight risk. Because appellant was 20 years old, the probation officer
could not recommend juvenile rehabilitation services. The court previously had placed
appellant home on probation. The probation officer recommended that appellant be

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committed to the Division of Juvenile Justice (DJJ).6 At DJJ, appellant would be
provided with an intensive sex offender treatment program which could address his
sexual deviance. He would also be provided educational and vocational training to help
him transition back to the community.
A probation report dated April 12, 2007, reflects appellant was on formal adult
probation for possessing a controlled substance. The probation officer referred to the
previous probation report and recommended that appellant be placed in DJJ.
In a 10-page report dated June 1, 2007, and prepared by defense psychologist
Robert Anderson, he indicated as follows. Appellant was not a threat to the community;
therefore, a DJJ commitment could not be justified on the ground that appellant was such
a threat. Treatment outside DJJ would be more effective. Appellant could receive more
specialized treatment outside DJJ since his girlfriend might be involved in the treatment
and he would be in an adult treatment group and not in a juvenile treatment group.
Anderson did not recommend that appellant be placed in DJJ.
At the June 25, 2007 dispositional hearing, the court indicated it had read the
November 2005 probation report and Anderson‟s report, and noted the probation report
recommended that appellant be committed to DJJ. Appellant argued his codefendant
George G.7 had committed similar offenses, appellant was similar situated to him, and
George G. had been suitably placed. Appellant suggested that appellant similarly
deserved suitable placement or camp placement. Appellant noted he was 22 years old
and the court should not punish him for that fact by placing him in DJJ which could
require him to register as a sex offender. Appellant indicated there was no evidence he
would receive at DJJ the counseling recommended by Anderson, no evidence appellant
would benefit from a DJJ commitment, and such a commitment was punitive. Appellant
recommended that the court order appellant to serve time in county jail prior to
disposition.
6 In July 2005, the California Youth Authority was renamed the Division of
Juvenile Justice of the Department of Corrections and Rehabilitation (DJJ). Hereafter,
we use the term DJJ.
7 George G. is not a party to this appeal.

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The court indicated as follows. The court had considered not only the reports but
the evidence in the present case. Releasing appellant would not be appropriate. If
appellant were committed to DJJ, he would have an opportunity to receive sexual
offender counseling, an option he would not have if he were sent to county jail. The
court found, inter alia, that the mental and physical condition and qualifications of
appellant rendered it probable that he would benefit from the reformatory discipline or
other treatment provided by DJJ. The court ordered appellant committed to DJJ.
b. Analysis.
The record reflects the court was familiar with the original offense, read the
various reports, and heard argument of counsel. In the absence of any contrary
indication, the court is presumed to have considered all relevant factors and was not
required to state reasons for its placement. (Cf. In re John H. (1978) 21 Cal.3d 18, 27;
People v. Moran (1970) 1 Cal.3d 755, 762.) We conclude the juvenile court below
considered and rejected less restrictive alternatives and, based on the totality of the
circumstances, substantial evidence supported the decision to commit appellant to DJJ.
The dispositional choice was well within the discretion of the court. (Cf. In re Ricky H.
(1981) 30 Cal.3d 176, 182-184; In re Pedro M. (2000) 81 Cal.App.4th 550, 553, 555-
556; In re Asean D. (1993) 14 Cal.App.4th 467, 473; In re Michael D. (1987)
188 Cal.App.3d 1392, 1395-1397; In re James H. (1985) 165 Cal.App.3d 911, 922-923.)
5. Appellant Stipulated to the Referee Acting As Temporary Judge at the Dispositional
Hearing.
a. Pertinent Facts.
On November 30, 2005, the parties filed a “Stipulation for Appointment of
Referee as Temporary Judge (Article VI, Section 21, California Constitution).”8 The
stipulation stated, in pertinent part, that “Shep Zebberman . . . may, as Temporary Judge,
try the jurisdiction hearing in said cause.” On the written form, Judge Zebberman signed
his consent to act as Temporary Judge, and the presiding judge signed a statement which
8 That constitutional provision states, “On stipulation of the parties litigant the court
may order a cause to be tried by a temporary judge who is a member of the State Bar,
sworn and empowered to act until final determination of the cause.”

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said, “Pursuant to Rule 244, California Rules of Court, the foregoing selection of the
above named Referee as Temporary Judge in the above entitled cause is hereby approved,
and it is ordered that the jurisdiction hearing is [sic] said cause be tried by such
Temporary Judge.”
On March 27, 2007, at the conclusion of the adjudication, the court (that is, the
referee acting as temporary judge) found true the allegation that appellant committed a
violation of Penal Code section 288, subdivision (b)(1), and the court found the offense to
be a felony. The court then asked if the parties were ready for disposition. The
prosecutor said yes. Appellant indicated there was no current probation report.
Appellant did not then expressly state whether he wanted a current probation report or
whether he was ready for disposition.
The court indicated that if appellant wanted a current probation report, the court
would order one, but the court intended to detain appellant pending disposition.
Appellant still did not expressly state whether he wanted a current probation report or
whether he was ready for disposition. Instead, appellant‟s counsel asked what the court‟s
indicated disposition was.
The court indicated the original probation report recommended a DJJ
commitment, and the court asked if appellant was 22 years old. Appellant replied yes.
The court indicated it had multiple dispositional options including DJJ, home on
probation, and county jail. Appellant indicated the prosecutor had made a pretrial offer
of county jail. The People objected and asked the court not to consider the offer.
The court said it thought home on probation was inappropriate, and the court
indicated it would either order appellant committed to DJJ or order him to serve time in
county jail. The court asked what the People‟s position was, and the prosecutor indicated
appellant deserved commitment to DJJ. Appellant asked the court to consider county jail
time.
The court asked if appellant wanted to do the disposition that day or wanted a
supplemental report. Appellant did not answer the question. Instead, appellant‟s counsel
said he wanted an indicated disposition from the court, and noted the People‟s offer had

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been 180 days in county jail. The People again objected and indicated the court should
not consider the offer.
The court said it would not consider the People‟s previous offer. The court
indicated it thought commitment to DJJ was an appropriate disposition and if appellant
wanted to get a supplemental report or additional information, the court would review it.
Appellant agreed that the court review same.
The court ordered appellant detained pending disposition. Appellant asked for a
dispositional hearing date of April 12, 2007. The prosecutor indicated he preferred that
the disposition occur that same week. The court said the present case was a DJJ case and
the court needed a current report. The court ordered the matter continued to April 12,
2007, for the dispositional hearing. The court indicated the statutory time was waived,
and the court ordered the probation department to prepare a supplemental probation
report. The March 27, 2007 minute order reflects the case was continued for disposition.
On April 11, 2007, appellant filed a motion for a new adjudication and/or motion
for reconsideration on the ground the sustaining of the petition was contrary to the law
and evidence because there was insufficient evidence that appellant violated Penal Code
section 288, subdivision (b)(1).
A probation report dated April 12, 2007, indicated the matter was on calendar for
disposition and for a recommendation from the probation officer. The report
recommended that appellant be placed in DJJ.
On April 12, 2007, the court called the case for disposition and acknowledged the
court had a motion for a new adjudication. Appellant asked that the court set the motion
for hearing. The court scheduled the hearing for May 4, 2007. The court asked if May 4,
2007, was the date for disposition as well in the event the motion for a new adjudication
was denied. Appellant said he would do his best to be prepared to go forward with the
disposition, but depending on the outcome of an ex parte application he had made, and
whether he obtained related material, he might have to continue the disposition.
However, appellant said he would do his best to have everything together by that date.
The court indicated it would set the disposition for May 4, 2007 and address the
contingencies on that date.

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On May 4, 2007, the court called the case for disposition and asked if the parties
were ready. Appellant indicated he was not and said that, on the previous Monday, he
had filed a motion to continue. Appellant indicated he had not received the defense
psychologist‟s report.
The court indicated it would continue the cases of appellant and the codefendant.
The court asked the codefendant if he were ready to proceed with disposition, and the
codefendant indicated he was ready. Appellant indicated he had scheduled a motion as
well as a disposition. He said he had no objection to doing the motion and had no
objection to proceeding if the motion was not granted. The court continued the matter to
May 25, 2007, and appellant waived time to that date for disposition. The May 4, 2007
minute order reflects the case was continued to May 25, 2007, for disposition and motion
for reconsideration. On May 23, 2007, appellant filed a motion to continue to permit him
to obtain the psychologist‟s report.
On May 25, 2007, the court called the case for disposition and to rule on
appellant‟s continuance motion. The court asked if it could hear the motion for a new
adjudication, but appellant indicated that, given his continuance motion, he was not
prepared to argue the motion for a new adjudication. The court continued the matter to
June 13, 2007, for hearing on the motion for a new adjudication and for possible
disposition. Appellant waived time for the disposition to June 13, 2007. The May 25,
2007 minute order reflects the matter was continued to June 13, 2007, for disposition and
a motion.
On June 13, 2007, the court called the case for a hearing on the motion for a new
adjudication. After argument, the court denied the motion. Appellant then requested to
file with the court an application for rehearing, purportedly pursuant to Welfare and
Institutions Code section 252.9 He also asked under that section that the present matter
be heard by a judge.
9 The section states, in pertinent part, that “At any time prior to the expiration of 10
days after service of a written copy of the order and findings of a referee, a minor . . .
may apply to the juvenile court for a rehearing.” It appears that appellant‟s premise for
any filing of an application for rehearing was that the previous proceedings had been

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Appellant later indicated he did not know whether the court‟s clerk was supposed
to accept the application or whether appellant had to file it in the clerk‟s office, but the
application would be filed that same day and appellant was requesting that the court stay
proceedings pending a rehearing by a judge. Appellant argued he was concerned that the
court had indicated that DJJ was the only available dispositional option, appellant had
intended to argue the issue but the court already had indicated its position, and if
appellant were committed to DJJ, he would have to register as a sex offender for the rest
of his life.
At no time during the above proceedings did appellant (1) state he had not
stipulated to the referee acting as a temporary judge to conduct dispositional proceedings
or the dispositional hearing, or (2) object to the referee acting as a temporary judge to
handle such dispositional matters. The court later denied without prejudice the request
for a stay, indicating appellant could request a stay before the rehearing judge.
Appellant then, for the first time, objected to the present court conducting the
dispositional hearing. Appellant argued the parties had stipulated that the court could
conduct only the jurisdictional hearing. Appellant said the stipulation did not mention the
dispositional hearing, and that the stipulation was ambiguous. After discussing pertinent
authority, the court continued the matter to June 25, 2007, for a hearing on whether it
could hear the disposition.
On June 25, 2007, the court indicated it had reviewed pertinent authority, the court
believed it had authority to issue dispositional orders, and the court intended to do so.
Appellant objected but indicated there was an ambiguity in the stipulation. The court
began to conduct the disposition hearing.
Appellant later indicated that on June 12, 2007, he had submitted an application
for rehearing, the application was stamped and dated received, but he had never filed it
with the court. The court indicated that such an application had been stamped received
on June 13, 2007. The court denied the application without prejudice in light of
appellant‟s stipulation filed on November 30, 2005. The court denied the application
conducted only by a referee, and not by a referee acting as a temporary judge. We
express no opinion as to the validity of any application for rehearing filed by appellant.

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without prejudice on the ground the court did not think it should be ruling on the
application. Appellant appeared to request a stay of proceedings pending appellant‟s
filing of the application, and the court denied the request. The court continued
appellant‟s matter for disposition to June 25, 2007, and the dispositional hearing was
conducted on that date.
On June 28, 2007, appellant filed an application for a rehearing with respect to the
adjudication and disposition. By letter dated July 9, 2007, the superior court rehearing
supervisor notified appellant that his application for rehearing was placed in the case file
without further action because appellant, on November 30, 2005, had stipulated to the
appointment of the referee as temporary judge.
b. Analysis.
Appellant claims the court lacked authority to conduct the dispositional hearing
because appellant did not stipulate to the referee acting as a temporary judge to conduct
the hearing. We disagree.
The written stipulation filed on November 30, 2005, expressly authorized the
referee to act as a temporary judge with respect to the jurisdictional hearing, but did not
expressly state whether the referee was to act as temporary judge with respect to
dispositional matters. However, we have recited the pertinent facts. We believe the
record, fairly read, reflects that, after the adjudication, but before appellant objected on
June 13, 2007, to the court‟s conducting the dispositional hearing, the court, without
objection, conducted post-adjudication proceedings and repeatedly discussed
dispositional matters.
We note appellant appeared to base his request for a stay on the grounds the court
had indicated DJJ was the only dispositional choice available, a DJJ commitment would
implicate sex offender registration issues, appellant had intended to argue the matter, but
did not do so because the court had indicated its position. However, it was appellant who
had pressed the court for an indicated disposition. Moreover, the court, on March 27,
2007, said it thought the present matter was a DJJ case. Nonetheless, after that date, but
before appellant‟s June 13, 2007 objection, appellant repeatedly indicated his willingness
that the court conduct disposition proceedings and hear any dispositional argument by

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appellant. The record suggests gamesmanship on appellant‟s part and that he was willing
for the temporary judge to conduct the dispositional hearing as long as appellant would
not be committed to DJJ.
We conclude that, even if the parties‟ written stipulation did not expressly
authorize the referee to act as a temporary judge during the disposition hearing, the
record demonstrates that, after the adjudication, but before appellant objected on June 13,
2007, to the court‟s conducting the dispositional hearing, appellant already had impliedly
stipulated to the referee acting as a temporary judge with respect to all post-adjudication
matters, including the dispositional hearing. (Cf. In re Horton (1991) 54 Cal.3d 82, 86,
97-98; In Re Mark L. (1983) 34 Cal.3d 171, 178-179; In re Brittany K. (2002)
96 Cal.App.4th 805, 813; In re P.I. (1989) 207 Cal.App.3d 316, 320-322.) Finally,
California Rules of Court, rule 2.831(f), applicable at the time of the above proceedings,
required appellant to file a written motion to withdraw a stipulation for the appointment
of a temporary judge.10 Appellant filed no such motion. We reject appellant‟s claim for
this reason as well.
6. Appellant Was Not Entitled to a Jury Trial, and No Violation of Equal
Protection or Ex Post Facto Principles Occurred.
a. Pertinent Facts.
As mentioned, appellant committed the present offense in about 2001. In 2005,
the California Youth Authority was renamed the Division of Juvenile Justice of the
Department of Corrections and Rehabilitation (DJJ).
On November 7, 2006, voters approved Proposition 83, The Sexual Predator
Punishment and Control Act (SPPCA) commonly known as Jessica‟s Law. The law went
into effect on November 8, 2006. (Cal. Const., art. II, § 10(a).) The SPPCA, inter alia,
10 The rule stated, in pertinent part, “A motion to withdraw a stipulation for the
appointment of a temporary judge must be supported by a declaration of facts
establishing good cause for permitting the party to withdraw the stipulation, and must be
heard by the presiding judge or a judge designated by the presiding judge. A declaration
that a ruling is based on error of fact or law does not establish good cause for
withdrawing a stipulation. Notice of the motion must be served and filed, and the
moving party must mail or deliver a copy to the temporary judge.”

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added subdivision (b), to Penal Code section 3003.5. Penal Code section 3003.5,
subdivision (b), states: “Notwithstanding any other provision of law, it is unlawful for
any person for whom registration is required pursuant to Section 290 to reside within
2000 feet of any public or private school, or park where children regularly gather.”
On March 27, 2007, appellant‟s adjudication concluded and the court sustained the
petition which alleged that appellant violated Penal Code section 288, subdivision (b)(1).
At appellant‟s June 25, 2007 dispositional hearing, the court declared appellant a ward of
the court and ordered him committed to the DJJ. The court also ordered that appellant
register as a sex offender.
At the time of appellant‟s June 25, 2007 dispositional hearing, former Penal Code
section 290, subdivision (a)(1)(A), contained provisions imposing lifetime registration
requirements. (See former Pen. Code, § 290, subd. (a)(1)(A) & (D).)11 Moreover, at the
time of appellant‟s dispositional hearing, former Penal Code section 290, subdivision
(d)(1) and (3)(B), stated, in relevant part, “(d)(1) Any person who, on or after January 1,
1986, is discharged or paroled from the Department of Corrections and Rehabilitation to
11 Penal Code section 290 was repealed and replaced by the Sex Offender
Registration Act (Act) (Pen. Code, § 290, et seq.), effective October 13, 2007. (Stats.
2007, ch. 579, § 8.) The Act, inter alia, redesignated various registration provisions.
Former Penal Code section 290, subdivisions (a)(1)(A) and (D), in effect at the
time of appellant‟s June 25, 2007 dispositional hearing, provided, in relevant part,
“(a)(1)(A) Every person described in paragraph (2), for the rest of his or her life while
residing in California, or while attending school or working in California, as described in
subparagraph (G), shall be required to register with the chief of police of the city in
which he or she is residing, or the sheriff of the county if he or she is residing in an
unincorporated area or city that has no police department, and, additionally, with the
chief of police of a campus of the University of California, the California State
University, or community college if he or she is residing upon the campus or in any of its
facilities, within five working days of coming into, or changing his or her residence
within, any city, county, or city and county, or campus in which he or she temporarily
resides. [¶] . . . [¶] (D) Beginning on his or her first birthday following registration or
change of address, the person shall be required to register annually, within five working
days of his or her birthday, to update his or her registration with the entities described in
subparagraph (A). At the annual update, the person shall provide current information as
required on the Department of Justice annual update form, including the information
described in subparagraphs (A) to (C), inclusive, of paragraph (2) of subdivision (e).”

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the custody of which he or she was committed after having been adjudicated a ward of
the juvenile court pursuant to Section 602 of the Welfare and Institutions Code because
of the commission . . . of any offense described in paragraph (3) shall be subject to
registration under the procedures of this section. [¶] . . . [¶] (3) Any person described in
this subdivision who committed an offense in violation of any of the following provisions
shall be required to register pursuant to this section: [¶] . . . [¶] (B) Any offense defined
in . . . Section 288[.]”12
b. Analysis.
Appellant makes related claims that he was entitled to a jury trial, he was denied
equal protection of the law because he was not afforded a jury trial, and imposition of the
Penal Code section 3003.5, subdivision (b) residency restriction violated the Ex Post
Facto Clause.
As to appellant‟s claim that his right to a jury trial was violated, he argues “the
lifelong registration requirement, combined with Penal Code section 3003.5‟s broad
residency restriction, [is] sufficiently severe and open-ended in scope as to become
punishment” with the result that, under Apprendi v. New Jersey (2000) 530 U.S. 466
[147 L.Ed.2d 435], and its progeny, he was entitled to a jury trial on the issue of whether
he committed the present offense, or, if he was not entitled to a jury trial on that issue, he
was entitled to a jury trial on the dispositional issue of whether he should have been
committed to DJJ. We reject appellant‟s claim.
The premise of appellant‟s claim is that the residency restriction of Penal Code
section 3003.5, subdivision (b), which went into effect on November 8, 2006, as part of
the SPPCA, applied retroactively to appellant‟s offense which occurred in about 2001.
However, the subdivision is not retroactive and therefore appellant is not subject to Penal
12 Former Penal Code section 290, subdivisions (a)(1)(A) and (D), in effect at the
time of the June 25, 2007 dispositional hearing, have been redesignated by the Sex
Offender Registration Act as Penal Code section 290, subdivision (b), and Penal Code
section 290.012, subdivision (a), respectively. Former Penal Code section 290,
subdivision (d)(1) and (3)(B), in effect at the dispositional hearing, have been
redesignated by the Act as Penal Code section 290.008, subdivisions (a) and (c)(2),
respectively.

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Code section 3003.5, subdivision (b). As the court stated in Doe v. Schwarzenegger
(E.D.Cal. 2007) 476 F.Supp.2d 1178, “The SPPCA does not expressly address the issue
of retroactivity, but it is well-established in California that statutes operate prospectively
unless there is clear evidence of intent to the contrary. See Evangelatos v. Superior Court
of Los Angeles County [(1988)] 44 Cal.3d 1188, 1207 . . . („[S]tatutes are not to be given
a retrospective operation unless it is clearly made to appear that such was the legislative
intent.‟) (internal quotation marks and citation omitted). This principle has been
characterized as a „time-honored principle,‟ id. at 1208, . . . that is „familiar to every law
student,‟ id. at 1207 . . . (quoting United States v. Sec. Indus. Bank, 459 U.S. 70, 79, 103
S. Ct. 407, 74 L.Ed.2d 235 (1982) (Rehnquist, J.)).
“Indeed, the principle is expressly codified in the California Penal Code: „No part
of [this code] is retroactive, unless expressly so declared.‟ Cal. Penal Code § 3; see also
Cal. Civ. Code § 3. To infer retroactivity is no small feat. „[A] statute will not be applied
retroactively unless it is very clear from extrinsic sources that the Legislature or the
voters must have intended a retroactive application.‟ Evangelatos, 44 Cal.3d at
1208 . . . . Formulated differently, a law may be given retroactive effect only by „the
unequivocal and inflexible import of the terms, and the manifest intention of the
legislature.‟ Id. at 1207 . . . (internal quotation marks and citations omitted).
“Here, the SPPCA is silent on the issue of retroactivity, and it is not „very clear‟
from extrinsic sources that the intent of the voters was to make it retroactive. See Tapia
v. Superior Court, 53 Cal.3d 282, 287 . . . (1991) (interpreting voter-approved proposition
as operating only prospectively where proposition was silent on issue of retroactivity).
To determine the intent of a voter-approved initiative, the plain meaning of the law is
typically most instructive, Davis v. City of Berkeley, 51 Cal.3d 227, 234, . . . (1990), but
the SPPCA evinces no textual intent of retroactivity.” (Doe v. Schwarzenegger, supra,
476 F.Supp.2d at pp. 1181-1182; see People v. Presley (2007) 156 Cal.App.4th 1027,
1033 (Presley).)
Appellant offers no extrinsic source evidence indicating the SPPCA applies
retroactively. Respondent concedes the SPPCA, and the residency requirement of Penal
Code section 3003.5, subdivision (b), in particular, are not retroactive. We reject

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appellant‟s claim that he was entitled to a jury trial, because his premise, that the
residency restriction applied retroactively, is erroneous.
Moreover, in Presley, the appellate court, after reviewing pertinent United States
Supreme Court and California Supreme Court authority, concluded that, at least absent
consideration of the residency restriction, “our federal and state courts have established
that a requirement to register as a sex offender is not per se punishment for purposes of
the federal Constitution.” (Presley, supra, 156 Cal.App.4th at p. 1033.) In Presley, the
trial court, as it was entitled to do, ordered registration based on the court‟s finding that
the offense at issue “was committed and motivated by sexual compulsion or for purposes
of sexual gratification.”13 (Id. at p. 1030) The appellate court, considering public
notification requirements (see current Pen. Code, § 290.46) and the Penal Code section
3003.5, subdivision (b) residency restriction, concluded the consequences of registration
were not punishment for purposes of the Sixth Amendment; therefore, the defendant had
no right to a jury trial on the issue concerning which the trial court had made a factual
finding. (Presley, supra, at pp. 1031-1035.)
We similarly conclude appellant has failed to demonstrate the requisite
punishment for purposes of the Sixth Amendment; therefore, appellant was not entitled to
a jury trial on the issues of whether he committed a violation of Penal Code section 288,
subdivision (b)(1), or whether the trial court should have committed him to DJJ.14
13 In 2006, when the offense at issue in Presley was committed, former Penal Code
section 290, subdivision (a)(2)(E), provided, “The following persons shall be required to
register pursuant to paragraph (1): [¶] . . . [¶] (E) Any person ordered by any court to
register pursuant to this section for any offense not included specifically in this section if
the court finds at the time of conviction or sentencing that the person committed the
offense as a result of sexual compulsion or for purposes of sexual gratification. The court
shall state on the record the reasons for its findings and the reasons for requiring
registration.”
14 The issue of whether the Sixth Amendment mandates that facts required to impose
the Penal Code section 3003.5, subdivision (b) residency restriction be found by a jury
beyond a reasonable doubt is pending before our Supreme Court in People v. Mosley,
review granted Mar. 12, 2009, S169411.

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Appellant‟s related claim that the Penal Code section 3003.5, subdivision (b)
residency restriction violated ex post facto principles is without merit. “[T]he ex post
facto clause prohibits only those laws which „retroactively alter the definition of crimes
or increase the punishment for criminal acts.‟ [Citations.]” (Hubbart v. Superior Court
(1999) 19 Cal.4th 1138, 1170-1171.) As discussed previously, the residency restriction is
not retroactive and the registration requirement, considered with the residency restriction,
does not constitute punishment; therefore, no violation of ex post facto principles
occurred.15
Finally, appellant claims he was denied equal protection by not having a jury trial
as discussed above since, he claims, he is similarly situated with respect to adults who are
charged with a violation of Penal Code section 288, subdivision (b)(1), and who are
subject to the residency restriction. However, as discussed, the residency restriction does
not apply to appellant. Moreover, an adult is entitled to a jury trial on a criminal charge
whether or not the Penal Code section 3003.5, subdivision (b) residency restriction
applies, and the fact minors are not entitled to a jury trial in juvenile proceedings does
violate equal protection principles. (Cf. In re Anthony J. (1978) 86 Cal.App.3d 164, 173-
174; see In re Scott K. (1979) 24 Cal.3d 395, 402; People v. Superior Court (Carl W.)
(1975) 15 Cal.3d 271, 274.)16
15 The issue of whether retroactive application of Penal Code section 3003.5,
subdivision (b), violates ex post facto principles is pending before our Supreme Court in
the case of In re E.J. (S156933).
16 In light of our resolution of appellant‟s right to a jury trial, equal protection, and
ex post facto claims on their merits, there is no need for us to address respondent‟s
arguments that appellant‟s claims are not ripe for review or that we should defer deciding
this case pending a decision by our Supreme Court in the case of In re E.J.

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DISPOSITION
The order of wardship is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J.
We concur:
KLEIN, P. J.
ALDRICH, J

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