In Re Oscar R.

125 Cal. Rptr. 2d 269, 101 Cal. App. 4th 1370
CourtCalifornia Court of Appeal
DecidedNovember 26, 2002
DocketB151004
StatusPublished
Cited by1 cases

This text of 125 Cal. Rptr. 2d 269 (In Re Oscar R.) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Oscar R., 125 Cal. Rptr. 2d 269, 101 Cal. App. 4th 1370 (Cal. Ct. App. 2002).

Opinion

125 Cal.Rptr.2d 269 (2002)
101 Cal.App.4th 1370

In re OSCAR R., a Person Coming Under the Juvenile Court Law.
The People, Plaintiff and Respondent,
v.
Oscar R., Defendant and Appellant.

No. B151004.

Court of Appeal, Second District, Division Two.

September 12, 2002.
Review Granted November 26, 2002.

*271 Gerson Simon, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Theresa A. Cochrane, and Catherine T. Okawa Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

*270 ASHMANN-GERST, J.

On March 7, 2000, the voters approved an initiative measure designated as Proposition 21, which became effective on March 8, 2000. In relevant part, Proposition 21 amended Welfare and Institutions Code section 777 to reduce the burden of proof and permit the use of hearsay in hearings to modify dispositional orders to impose more restrictive custody for minors previously adjudicated as wards of the court. (Welf. & Inst.Code § 777, subd. (c) ["The facts alleged in the notice shall be established by a preponderance of the evidence at a hearing to change, modify, or set aside a previous order. The court may admit and consider reliable hearsay evidence ..."]) Prior to March 8, 2000, allegations to modify a prior dispositional order needed to established beyond a reasonable doubt. (In re Arthur N. (1976) 16 Cal.3d 226, 239-240, 127 Cal.Rptr. 641, 545 P.2d 1345.) Likewise, under prior case law, hearsay not subject to a statutory exception was inadmissible. (In re Antonio A. (1990) 225 Cal.App.3d 700, 706, 275 Cal. Rptr. 482.)

Appellant Oscar R. appeals the juvenile court's revocation of his probation and sentence to the California Youth Authority (CYA). He contends that the juvenile court erred in applying amended Welfare and Institutions Code section 777 (hereafter *272 amended section 777), which was enacted before appellant violated his probation but after he originally was sentenced.[1] Appellant asserts three arguments in support of his appeal: (1) application of amended section 777 violated the ex post facto clauses of the United States and California Constitutions; (2) the juvenile court erred in admitting hearsay testimony; and (3) amended section 777 violates California's single subject rule. We find that the juvenile court did not err. When a juvenile who, after the enactment of amended section 777, engages in conduct alleged to violate the terms of his probation, application of amended section 777 to the probation revocation hearing does not violate the ex post facto clauses of the United States and California Constitutions, even though the original underlying offense occurred prior to the enactment of the statute. Furthermore, the juvenile court did not err in allowing reliable hearsay testimony at the probation revocation hearing. Finally, in light of the recent California Supreme Court decision (Manduley v. Superior Court (2002) 27 Cal.4th 537, 582, modified 27 Cal.4th 887a, 117 Cal.Rptr.2d 168, 41 P.3d 3, (Manduley)), we conclude that Proposition 21 does not violate the single subject rule.

FACTUAL AND PROCEDURAL BACKGROUND

In a petition filed on May 18, 1998, appellant was charged with three counts of robbery and one count of possession of a firearm by a minor. The petition was sustained as to two robbery counts and the firearm count, and the juvenile court ordered appellant to be placed in the camp community placement program (camp) for a period not to exceed 16 years. Additionally, as a condition of his probation, appellant was ordered to avoid contact with the robbery victims, including Ivan L. Appellant spent 45 weeks in camp and was released on June 18,1999.

In a petition filed November 5, 1999, appellant was charged with one count of public intoxication. The petition was sustained and appellant again was placed in camp for 90 days, with an order that he could not be confined for more than 16 years. The prior probation conditions remained in effect.

The petition in the instant case was filed on March 1, 2001, charging appellant again with public intoxication. At a hearing on April 2, 2001, appellant admitted the charge of public intoxication and the juvenile court found it to be true beyond a reasonable doubt, and appellant was sentenced to two months at CYA. Thereafter, at defense counsel's request, the matter was continued for a contested disposition and probation violation hearing.

On April 30, 2001, the juvenile court held the hearing on the contested disposition and on the allegation that appellant violated the terms of his probation by contacting Ivan L. At the hearing, over appellant's hearsay objection, the juvenile court allowed appellant's probation officer, Jerome Spurlin (Spurlin), to testify regarding the allegation that appellant had been harassing Ivan L. Spurlin testified that on February 14, 2001, he spoke with Ivan L. and Ivan L.'s mother. They informed Spurlin that on February 2, 2001, appellant had been looking for Ivan L. "on the campus." Appellant later called Ivan L. and asked him "do he know who he was" and told him "to watch his back." Ivan L. was very serious, concerned, and sincere. In fact, following appellant's telephone call, Ivan L. withdrew from school and began a *273 "home study course" because he was afraid of appellant. In a March 28, 2001, preplea report, Spurlin recommended that the alleged offenses be considered a probation violation and that appellant be returned to camp for the maximum amount of time.

After hearing all of the evidence, the juvenile court stated the following: "Now, we have [appellant] here on a [public intoxication] offense, which is a minor offense .... Now, having read [the doctor's] report, I do think that a placement in an alcohol treatment program would be appropriate. But then also looking at the probation violation, the fact that [appellant] continues to be in violation of this court order about contacting the victims as indicated in the report and presented by Mr. Spurlin, is a very, very serious concern to me. Because we have a young victim who is being threatened for coming in here and telling us what happened, and I find that to be very, very serious. [¶] I find that the [CYA] would be the appropriate disposition; therefore, I find that the previous order of camp ... is terminated, and that was made on October 4th, 2000, and I find that a more restrictive placement is necessary and I am sentencing him to the [CYA]. Not on the alcohol offense but rather on a probation violation as to the original offense."

On May 1, 2001, appellant timely filed a notice of appeal from the juvenile court's order.

DISCUSSION

I. The Juvenile Court's Application of Amended Section 777 at the Probation Revocation Hearing Did Not Violate the Ex Post Facto Clauses of the United States and California Constitutions

"The heart of the Ex Post Facto Clause, U.S. Const., Art. I, § 9, bars application of a law `that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed ... .' Calder v. Bull, 3 U.S. 386 (3 Dall.) 386, 390, 1 L.Ed. 648 (1798) (emphasis deleted). To prevail on this sort of

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Bluebook (online)
125 Cal. Rptr. 2d 269, 101 Cal. App. 4th 1370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-oscar-r-calctapp-2002.