PEOPLE v. THACKER

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Court of Appeal, First District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Richard D. THACKER, Defendant and Appellant.

A016720.

Decided: June 22, 1983

Philip Pennypacker, Conflicts' Administrator In association with Carlo Andreani, San Jose, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., William D. Stein, Asst. Atty. Gen., Kristofer Jorstad, Ronald D. Smetana, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Richard Thacker appeals from a judgment of imprisonment after he pleaded nolo contendere to one count of oral copulation with a child ten years younger than the accused (Pen.Code, § 288a, subd. (c)), and guilty of two counts of lewd and lascivious conduct with a child (§ 288a, subd. (a)).

I–II

III

The Legislature has repealed,1 effective January 1, 1982, former Welfare and Institutions Code sections 6300 through 6330, which provided for hospital confinement in lieu of immediate imprisonment for “mentally disordered sex offenders” (MDSO).   In abolishing the MDSO procedures, the legislation declared, “Nothing in this act shall be construed to affect any person under commitment ․ prior to the effective date of this act.”  (Stats.1981, ch. 928, § 3.)   Appellant committed his offenses in 1980.   On November 16, 1981, he pleaded nolo contendere and guilty to several charges.   During sentencing on February 11, 1982, the court held that it lacked authority to order appellant's evaluation for MDSO commitment and consequently pronounced judgment of imprisonment.

Appellant maintains that, as his offenses were committed prior to the effective date of the repealing legislation, the court's refusal to order MDSO evaluation violates the ex post facto doctrine.  Stickel v. Superior Court (1982) 136 Cal.App.3d 850, 186 Cal.Rptr. 560, has resolved this question against appellant.   Applying the ex post facto standards articulated in Weaver v. Graham (1981) 450 U.S. 24, 28–29, 101 S.Ct. 960, 963–64, 67 L.Ed.2d 17, and Conservatorship of Hofferber (1980) 28 Cal.3d 161, 180, 167 Cal.Rptr. 854, 616 P.2d 836, Stickel found the repeal of the MDSO law neither increased nor changed the punishment for the crimes nor altered the situation of the accused to his disadvantage.   The purpose of the MDSO procedures was treatment, not punishment;  it did not alter or provide a substitute for the punishment of sex offenses.   Consequently, the court found the abolition of those procedures did not aggravate the punitive consequences of the defendant's conduct but only removed a treatment option formerly available for persons convicted of those offenses.  (Stickel v. Superior Court, supra, 136 Cal.App.3d 850, 857–858, 186 Cal.Rptr. 560.)

Appellant urges that we decline to follow Stickel v. Superior Court, supra, in light of the Supreme Court's intervening decision in In re Stanworth (1982) 33 Cal.3d 176, 187 Cal.Rptr. 783, 654 P.2d 1311.2  There the court held the ex post facto doctrine required that an individual originally sentenced under the Indeterminate Sentencing Law (ISL) (former Pen.Code, § 1168, repealed effective Jan. 1, 1977) receive parole release consideration under the standards of both ISL and the current Determinate Sentencing Law (DSL).  (Pen.Code, § 1170 et seq.)   It was immaterial that prior to enactment of DSL the prisoner had no “vested right” in a particular release date or that it was not clear that he individually would receive a more favorable outcome under ISL standards.   ISL required parole authorities to consider many aspects of a prisoner's personal and social history—“under the ISL, parole release depended upon the individual characteristics of a particular inmate.”  (Id., at p. 182, 187 Cal.Rptr. 783, 616 P.2d 1311.)   In contrast, DSL emphasizes uniform punishment for similar crimes.   As an inmate evaluated solely under DSL standards might receive a later release date than he would have if considered under the former law, “the standard of punishment has been altered to defendant's prejudice․”  (Id., at p. 188, 187 Cal.Rptr. 783, 616 P.2d 1311.)

Stanworth does not implicitly disapprove the reasoning of Stickel.   A longer period of imprisonment obviously “disadvantages” a defendant and constitutes more “onerous” punishment.   The crucial holding of Stanworth is that an ex post facto violation occurs where the defendant may be subjected to the detriment of longer imprisonment if treated under the new law.   There is no possibility that appellant here could be released from confinement at an earlier date were he adjudicated as an MDSO.   The former law required an MDSO be confined for the maximum period of imprisonment prescribed for his offense.  (Former Welf. & Inst.Code, § 6316.1;  Stats.1979, ch. 255, § 63.)   The instant case, like Stickel, requires comparison not of potentially different periods of imprisonment but of confinement as a MDSO with imprisonment.  Stickel rests not upon the vested rights analysis repudiated in Weaver and Stanworth but upon the rationale of Conservatorship of Hofferber, supra, 28 Cal.3d 161, 181–182, 167 Cal.Rptr. 854, 616 P.2d 836:  An MDSO determination, like that of a defendant's competence to stand trial, is not a “criminal adjudication,” and confinement and treatment under MDSO do not constitute a form of punishment.  (Stickel v. Superior Court, supra, 136 Cal.App.3d 850, 858, 186 Cal.Rptr. 560.)  Stanworth addresses potential differences in the duration of imprisonment, i.e., the degree or extent of punishment;  Stickel involves instead the characterization of the MDSO regimen as punitive or therapeutic.   The soundness of its reasoning is therefore unaffected by Stanworth.

Appellant attempts to distinguish Stickel on the basis of references to the “date of conviction.”   In effect, appellant has shifted his argument from ex post facto reasoning to ascertainment of legislative intent.   He asserts that, as the court accepted his guilty and nolo contendere pleas on November 16, 1981, he is unaffected by the repeal of the MDSO law.   Neither Stickel nor the legislation itself supports this conclusion—the operative date is that of the sentencing or commitment proceedings, not of the determination of guilt.   The former statute remains in effect only for offenders “committed” prior to January 1, not for those potentially eligible for such evaluation and commitment.   Appellant, by his own conduct, deprived the court of the opportunity to order MDSO evaluation.   On December 14, 1981, appellant's case came on for sentencing;  upon his motion the court continued the matter until after the new year.   Regardless of appellant's motives in seeking a continuance, a consequence of his action was that necessarily he was sentenced by a court lacking authority to order MDSO evaluation.3

The language in Stickel upon which appellant relies does not support a different conclusion.   There, the defendant was convicted after January 1, 1982, and consequently the court did not confront the issue raised here.   The opinion refers to the time of conviction only in the course of distinguishing the date of the judicial proceedings from that of the offense.   In more precise language elsewhere in its discussion the court spoke of the commencement of the MDSO procedures themselves:  “The question is whether that language refers to prospective crimes or to prospective convictions.   We conclude it refers to convictions and that the Legislature intended to abolish the initiation of all MDSO proceedings after January 1, 1982.”  (Stickel v. Superior Court, supra, 136 Cal.App.3d 850, 859, 186 Cal.Rptr. 560;  italics added.)   In another passage, Stickel states the latter point with greater clarity:  “The People contend that the Legislature intended to preserve the MDSO laws only to those persons actually committed before the effective date of the repeal of the MDSO laws, regardless of the date of the commission of their offenses.   We agree.”  (136 Cal.App.3d 850, 858, 186 Cal.Rptr. 560 [italics added;  fn. omitted].)

IV

Portions of this opinion, designated as parts I, II and IV, are not certified for publication.  (Cal.Rules of Court, rules 976 and 976.1.)

The judgment is affirmed.

I dissent.

Triple-bottoming the majority opinion are three rationales:  (1) a novel theory of waiver that is unfair in the extreme;  (2) a new statutory interpretation that creates unnecessary conflict with other decisions;  and, (3) a misreading of the ex post facto clause.

When appellant entered his nolo plea on November 16, 1981, he was fully advised that “it will be mandatory for the Court to have an inquiry into the issue as to whether you're a mentally disordered sex offender before the Court can proceed to judgment in the case.”  (Emphasis added.)

At appellant's next court appearance (December 14, 1981) his counsel sought and obtained a continuance.   As a result all further proceedings occurred after the effective date of the repealer statute—January 1, 1982.  (See Stats.1981, ch. 928, § 2 p. ––––.)

The majority opinion holds that when on December 14, 1981, appellant's counsel obtained the continuance, that resulted “necessarily” in appellant being sentenced by a court lacking authority to order a mentally disordered sex offender [MDSO] evaluation, “[r]egardless of appellant's motives in seeking a continuance.”

Apparently the notion of the majority opinion is that it was so clear that a continuance beyond December 31, 1981, would oust the court of MDSO jurisdiction that appellant waived his right to have MDSO proceedings instituted when he made the motion to continue.

There are difficulties that even Draco would have with such a harsh theory of waiver.   Some of them are:  (a) there was no evidence that appellant or his counsel knew or should have known that January 1, 1982, was such a magic date for a person who had committed his offense and was also convicted before then;  and (b) at the time appellant sought his continuance the chief law enforcement officer of this state had determined that “the Legislature did not intend to abolish MDSO laws as to persons who committed crimes prior to the effective date of the repeal of those laws, regardless of their conviction and commitment dates, and had so been advising his clients․”  (Stickel v. Superior Court (1982) 136 Cal.App.3d 850, 858, fn. 5, 186 Cal.Rptr. 560.)

On the basis of these facts, a theory of knowing waiver would be impossible to impose and would be even more obviously unfair:  the Attorney General did not understand the effect of the statute but appellant is held to what this court now declares is the correct interpretation.   Waiver is simply inapplicable here.   And if it is applicable then counsel's error would seem to fit the newly expanded notion of Pope 1 error.  (See People v. Fosselman (1983) 33 Cal.3d 572, 584, mod., 33 Cal.3d 974a, 189 Cal.Rptr. 855, 659 P.2d 1144.)

It warrants emphasizing that appellant's crime and his conviction both occurred before the effective date of the statutory repeal of MDSO procedures.   What happened after the effective date of the repealing statute was sentencing.   At the sentencing hearing the trial court made obvious that but for the repeal it would treat appellant as an MDSO.2

Until today's decision the uniform view of the Court of Appeal was that the Legislature intended this repeal to reach only those person who were convicted after January 1, 1982.   Under that view the repeal would have no effect upon appellant who was convicted in 1981.   There were two decisions.   In the first, the court opined—in dicta—“[a]lthough the question has not been raised in these proceedings, for the guidance of the trial court, we think it appropriate to point out that the critical event in applying the new statute (Pen.Code, § 1364) is conviction rather than commission of the offense.”  (People v. Superior Court (Martin) (1982) 132 Cal.App.3d 658, 663, 183 Cal.Rptr. 563.)   In the second, the court held that the Martin reading was correct.  (Stickel v. Superior Court, supra, 136 Cal.App.3d 850, 859 and fn. 6, 186 Cal.Rptr. 560.)

Thus if I understand how this system works, appellant would be entitled to a reversal of the judgment of conviction and a remand for the institution of MDSO proceedings on the basis of those cases unless this court sees fit to create a conflict with the Stickel holding and to determine that the Legislature meant in its repeal to select a later event such as the date of sentencing.

It is, however, unnecessary to engage in a sparring contest 3 on the question of whether Stickel holds that the Legislature intended the crucial date to be that of the commission of the offense or of conviction.   Either interpretation violates the ex post facto clause of both the United States Constitution and the California Constitution.

That constitutional question was also decided in Stickel.   In a lucid and cogent opinion the court examined whether the repeal violated the ex post facto clause by altering the situation of the accused to his disadvantage:  “ ‘That branch of ex post facto doctrine,’ the California Supreme Court explained in Hofferber [Conservatorship of Hofferber (1980) 28 Cal.3d 161, 180, 167 Cal.Rptr. 854, 616 P.2d 836], ‘relates to circumstances under which a criminal defendant is forced to defend against a verdict of criminal guilt’ (28 Cal.3d at p. 182).   Since the MDSO procedure did not even come into play until ‘a person is convicted of a sex offense’ (former Welf. & Inst.Code, § 6302), it is self-evident that the repeal of this procedure could not disadvantage petitioner in the determination of his criminal guilt.   In short, the MDSO statutes did not involve a criminal adjudication and their repeal, by definition, could not constitute an ex post facto violation.”   (Stickel v. Superior Court, supra, 136 Cal.App.3d at pp. 857–858, 186 Cal.Rptr. 560.)

That analysis was correct when written on October 22, 1982.   It became incorrect two months later as a result of the California Supreme Court's analysis of the ex post facto clauses in In re Stanworth (1982) 33 Cal.3d 176, 187 Cal.Rptr. 783, 654 P.2d 1311.   A unanimous opinion made clear what the Supreme Court of the United States held in Weaver v. Graham (1981) 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17:  the disadvantage doctrine is not limited to procedures for the determination of guilt.4  It applies as it did in Weaver to statutes having nothing whatsoever to do with guilt determinations, there the application of “gain time for good conduct.”   The California Supreme Court quoted and applied the Weaver test:  “ ‘․ our decisions prescribe that two critical elements be present for a criminal or penal law to be ex post facto:  it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.’ ”  (In re Stanworth, supra, 33 Cal.3d at p. 180, 187 Cal.Rptr. 783, 654 P.2d 1311, emphasis added.)

Thus as a matter of United States constitutional law both the United States and the California Supreme Courts apply the disadvantage doctrine to the ex post facto analysis of all statutes, not only to those which change procedures for determining guilt.  (In re Stanworth, supra, 33 Cal.3d at pp. 180–181, 187 Cal.Rptr. 783, 654 P.2d 1311;  Weaver v. Graham, supra, 450 U.S. at pp. 29–31, 101 S.Ct. at pp. 964–65.)

Disadvantage is no longer a “prong” of ex post facto analysis—it is the analysis.   If its application were limited to analysis of statutes changing guilt adjudication procedure the United States Supreme Court in Weaver and the California Supreme Court in Stanworth would not have applied the test in dealing with the punishment phase of criminal proceedings.

There is no question but that as applied to appellant—a person who committed his crimes before its enactment—the statute in question substantially alters the consequences attached to those already completed crimes.   It is a retrospective law which can be constitutionally applied to appellant only if it is not to his detriment.   Whether it is a detriment—i.e., whether it worsens conditions imposed by its predecessor—is a federal question.   (Weaver v. Graham, supra, 450 U.S. 24 at p. 33, 101 S.Ct. 960, at p. 966, 67 L.Ed.2d 17.)

The applicable federal test is whether the new provision “makes more onerous the punishment for crimes committed before its enactment”.  (At p. 36, 101 S.Ct. at 968.)   The definitive answer has already been bluntly given by the Court of Appeal:  “The legislative intent and the reasons therefor could not have been more clearly expressed.   Persons convicted after January 1, 1982, of the specified heinous sex offenses are to be dealt with in a more punitive fashion than was the case previously.”  (People v. Superior Court (Martin), supra, 132 Cal.App.3d at p. 663, 183 Cal.Rptr. 563;  emphasis except for “convicted” added.)   Nothing more need be said.

I would set aside the sentence of imprisonment and would remand the case for further MDSO proceedings.

FOOTNOTES

FOOTNOTE.  

1.   Statutes 1981, chapter 928, section 2.

2.   We note initially that the Supreme Court denied a petition for hearing in Stickel on January 5, 1983, less than two weeks after it decided Stanworth.

3.   For the same reason, appellant cannot claim prejudice from the court's allusion at the time of his entry of guilty and nolo contendere pleas to the necessity of an MDSO evaluation.   As the court warned him, if adjudicated as an MDSO, appellant could be institutionalized for a period in excess of that provided in the plea bargain.  (He was also specifically advised that MDSO commitment was not a “condition of your plea.”)   The court was obliged to so inform the defendant before accepting his pleas since had the sentencing hearing taken place within 28 days of his conviction (Pen.Code, § 1191), the court would have had no choice but to order MDSO evaluation.   As, due to the continuance obtained by appellant, the matter was not heard until after January 1, 1982, the court had no authority to order such an evaluation.   Hence, in each instance, the court's conduct was entirely proper.

1.   People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859.

2.   “․ I think that you are mentally ill, I think you're legally accountable for what you do, and I think you are predisposed to the commission of sexual crimes to the point where you are very dangerous to others.   But for the change in the law you would be—the court would be obliged to adjournment criminal proceedings and look to commitment proceedings to see if you are a mentally disordered sex offender and if so, to see if you were amenable to treatment and if amenable whether you would be a proper case for treatment or for prison.   I'm not going to prejudge how the court would rule in such a matter.   Those procedures are apparently no longer viable.   There are and will be test cases that will go to the appellate courts where they'll be ruled on, but I don't think it's desirable to have all cases pending and handing fire until these cases are litigated.   Something is going to have to happen in the meantime to the people involved.   I will say this;  that if the appellate courts of the state find that there is still a viable commitment proceeding for people who have committed sexual crimes prior to January first, 1982, who may be amenable to treatment, who may be mentally disordered sex offenders who may be amenable to treatment so that there is still a viable program, why then I will recall my commitment and appoint doctors, determine whether you meet the legal test and then determine whether or not you should be committed, without present judgment.   But in the meantime, since you have not been committed, since there is no longer a[n] MDSO proceeding, they have been repealed by law, it's my intention to go ahead and impose a state prison sentence so you can make the necessary adjustments in your life and I trust that you will take advantage of proceedings that will be available to you during the last years of your commitment where you can be treated in a hospital as though an MDSO in a hospital setting so that when you are released you will not be a danger to your loved ones or to other persons.”The trial court imposed the aggravated seven year sentence, in part, based upon the reasons that “the victim [w]as particularly vulnerable,” and defendant “took advantage of a position of trust or confidence in regard to [his] child.”

3.   This court purports not to be creating a conflict with Stickel but rather to be following the holding in Stickel which this court finds to be that the Legislature selected the later time—sentencing—as the magic point.Petitioner in Stickel committed his crime in 1981;  he was convicted and sentenced in 1982, i.e., after the effective date of the repealer statute.   He claimed that he was entitled under ex post facto principles to be treated under the former MDSO laws because he committed his crime prior to the effective date of the repeal of those laws.What the Stickel court found was that “It is clear that the Legislature intended to preserve the MDSO program for those defendants committed under its provisions prior to January 1, 1982.   In section 3 of chapter 928 of the Statutes of 1981, the Legislature, as we have noted, expressly stated that the repeal of the MDSO laws would not apply to persons ‘under commitment ․ prior to the effective date of this act.’   Petitioner was not ‘under commitment’ prior to that time.   It is equally clear that the Legislature intended to abolish the program as to those persons who commit crimes subsequent to January 1, 1982.   Petitioner committed his crime prior to the effective date of the repeal of the MDSO provisions, but was not convicted until after the repeal became effective.   The declared legislative intent concerning that situation is, admittedly, less clear.   The Legislature explicitly declared that the repeal was to be ‘prospective only.’   The question is whether that language refers to prospective crimes or to prospective convictions.   We conclude it refers to convictions and that the Legislature intended to abolish the initiation of all MDSO proceedings after January 1, 1982.6”  The court's footnote 6 provides:  “The same conclusion was reached by the Court of Appeal for the Second District in dictum in People v. Superior Court (Martin) (1982) 132 Cal.App.3d 658, 183 Cal.Rptr. 563.   There the court observed:  ‘Although the question has not been raised in these proceedings, for the guidance of the trial court, we think it appropriate to point out that the critical event in applying the new statute (Pen.Code, § 1364) is conviction rather than commission of the offense.  [¶]  Penal Code section 1364 provides in effect that persons who are convicted of the prescribed offense after the effective date of the statute shall not be subject to an MDSO commitment but shall instead be committed to the Department of Corrections.  [¶]  By the same token, the legislation providing for prospective only repeal of the MDSO procedure speaks in terms of retaining persons under previously ordered commitments.’  (Id., at pp. 663–664, 183 Cal.Rptr. 563;  italics in original.)”  (Stickel v. Superior Court, supra, 136 Cal.App.3d at pp. 858–859, 186 Cal.Rptr. 560.)“Since petitioner was not convicted until February 1982 the prospective repeal of MDSO commitments, effective January 1st, applied to his case.”   (Id., at p. 860, 186 Cal.Rptr. 560, emphasis added.)Thus my reading of the legislative intent of Penal Code section 1364, as reinforced by my reading of the dictum in Martin and the holding of Stickel is that conviction is the crucial event insofar as the Legislature is concerned.

4.   In California the only Supreme Court case determining that disadvantage is a test applicable only to “circumstances under which a criminal defendant is forced to defend against a verdict of criminal guilt” is Conservatorship of Hofferber, supra, 28 Cal.3d at p. 182, 167 Cal.Rptr. 854, 616 P.2d 836.   The sole authority cited for that proposition was People v. Ward (1958) 50 Cal.2d 702, 707, 328 P.2d 777, cert. den., 359 U.S. 945, 79 S.Ct. 730, 3 L.Ed.2d 678 disapproved on other grounds in People v. Morse (1964) 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33.Ward does not stand for the proposition for which it was so cited.   Ward involved an appeal from a judgment of conviction imposing the death penalty.   Appellant contended that it was an ex post facto violation to admit during the penalty phase of his trial evidence of his jail and juvenile court records which would not have been admissible under the rules of evidence in effect prior to the adoption of a statute which was enacted after the offense for which he was being tried.   In analyzing that contention the California Supreme Court quoted at length from Thompson v. Utah (1898) 170 U.S. 343, 351–352, 18 S.Ct. 620, 623, 42 L.Ed. 1061, including this passage:  “ ‘It is sufficient now to say that a statute belongs to that class which by its necessary operation and “in its relation to the offense, or its consequences, alter the situation of the accused to his disadvantage.”  [Citations.]  Of course, a statute is not of that class unless it materially impairs the right of the accused to have the question of his guilt determined according to the law as it was when the offense was committed.   And, therefore, it is well settled that the accused is not entitled of right to be tried in the exact mode, in all respects, that may be prescribed for the trial of criminal cases at the time of the commission of the offense charged against him.’ ”  (People v. Ward, supra, 50 Cal.2d at p. 707, 328 P.2d 777, emphasis added.)That passage from Thompson v. Utah did not limit the applicability of the disadvantage test to statutes affecting the guilt determination process but instead emphasized that when the disadvantage test was applied to a statute which did alter the procedures for determining guilt, disadvantage would be found only where the change in process was “material.”   That also is the way the California Supreme Court interpreted that passage for in Ward it applied the disadvantage test to a penalty trial, not a guilt trial.

CHRISTIAN, Associate Justice.*** FN*** Under assignment by the Chairperson of the Judicial Council.

CALDECOTT, P.J., concurs.