In re Kyle R. CA1/5

Filed 3/26/14 In re Kyle R. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

In re KYLE R., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent, A139075

v. (Sonoma County Super. Ct. No. 35095J) KYLE R.,

Defendant and Appellant. ________________________________________/

The juvenile court declared Kyle R. (the minor) a ward of the court under Welfare and Institutions Code section 6021 after he admitted committing a lewd act upon a child (Pen. Code, § 288, subd. (a)). The minor later admitted violating probation and the court committed him to the Division of Juvenile Facilities (DJF). The minor appeals. He contends the commitment to the DJF violates ex post facto laws (U.S. Const., art. 1, § 10; Cal. Const., art. I, § 9) because it “was unavailable and carried significant additional penalties not in existence at the time of the original offense.” In re Edward C. (2014) 223 Cal.App.4th 813 (Edward C.), petition for review pending, petition filed March 7, 2014 (S216974) and In re K.J. (Mar. 20, 2014, A137787) 1 Unless otherwise noted, all further statutory references are to the Welfare and Institutions Code. 1

[2014 WL 1090149] (K.J.) recently resolved this issue against the minor. We are not persuaded these cases are wrongly decided and, as a result, we affirm. FACTUAL AND PROCEDURAL BACKGROUND On several occasions in 2007 and 2008, the 13-year-old minor rubbed the vagina of a four-year-old and inserted his fingers into her vagina and anus. In the operative section 602 wardship petition, the People alleged the minor committed continuous sexual abuse of a child under 14 (Pen. Code, § 288.5, subd. (a)) and committed a lewd act upon a child (Pen. Code, § 288, subd. (a)). In early 2008, the minor admitted committing a lewd act upon a child (Pen. Code, § 288, subd. (a)). The court dismissed the other allegation, declared the minor a ward of the court, and ordered out-of-home placement. In November 2012, the probation officer filed a section 777 notice alleging the 19- year-old minor had violated probation by: (1) dating a 16-year-old girl after being told not to do so; (2) attending church without a responsible adult after being told not to so; (3) consuming alcohol; (4) viewing pornography twice a week for the preceding several weeks; and (5) using a computer at his transitional living placement to view pornography and access his Facebook account. The minor admitted the violation. The court requested and received a section 707.2 diagnostic evaluation, which recommended committing the minor to Sex Offender Treatment Program at the DJF. The probation department also recommended committing the minor to the DJF’s Sex Offender Treatment Program, concluding it was the least restrictive and most “appropriate” placement that “would keep the community safe, while allowing [the minor] to continue to focus on his sex offender issues.” The supplemental probation report noted the minor had “disclosed five other minor female victims . . . . One of the victims [was] a six year old neighbor [his] mother would babysit in their home, where the minor admitted anal penetration occurred on two occasions. The minor acknowledged over the clothing [touching] only with the other four victims. These victims included the minor’s 8 year old second cousin, the 8 year old daughter of his mother’s friend, the 11 year old daughter of his mother’s boyfriend, and a 7 year old friend of his cousin.”