Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Tulare County No. JJD041312-93, Valeriano Saucedo, Judge.
Phillip J. Cline, District Attorney, Don H. Gallian and Shani D. Jenkins, Assistant District Attorneys, Barbara J. Greaver and John F. Sliney, Deputy District Attorneys, for Appellant.
Heather J. MacKay, under appointment by the Court of Appeal, for Respondent.
Wiseman, Acting P.J.
In 2009, Dustin A. was paroled after serving a prison term for a drug possession offense he committed while an adult. In 1995, when he was 16, Dustin was committed to the California Youth Authority (now the Division of Juvenile Facilities) for several offenses, including a misdemeanor violation of Penal Code section 647.6, annoying or molesting a minor. Because juveniles who have been committed to DJF for violating section 647.6 are required to register as sex offenders, Dustin fell within Policy No. 07-36 of the California Department of Corrections and Rehabilitation (CDCR), which requires parolees who must register as sex offenders to comply, as a condition of their parole, with Penal Code section 3003.5, subdivision (b). That statute, which was adopted by the voters in 2006 as part of Proposition 83, known as Jessica’s Law, prohibits those who are required to register as sex offenders from living within 2, 000 feet of a school or a park where children regularly gather. Dustin was also told his parole was conditioned on his not being in the presence of minors, including the child he was expecting with his fiancée.
The California Youth Authority (CYA) was renamed Department of Corrections and Rehabilitation, Division of Juvenile Justice effective July 1, 2005. The Division of Juvenile Facilities (DJF) is part of the Division of Juvenile Justice. (Gov. Code, §§ 12838, 12838.3, 12838.5, 12838.13.) DJF is referenced in statutes, such as Welfare and Institutions Code sections 731 and 733, that formerly referred to CYA. In this opinion we will use the name DJF uniformly, even when referring to older cases and statutes.
Dustin filed a petition for a writ of habeas corpus in propria persona, arguing that these parole conditions were unreasonable and that, as applied to him, Penal Code section 3003.5 was an ex post facto law and violated the anti-retroactivity provision of Penal Code section 3. Shortly afterward, the Supreme Court issued its decision in In re E.J. (2010) 47 Cal.4th 1258, which rejected similar ex post facto and Penal Code section 3 claims and remanded for decisions on similar unreasonable-condition-of-parole claims.
The superior court appointed counsel for Dustin for further proceedings. Dustin’s counsel filed a supplemental memorandum of points and authorities, urging the court to grant Dustin relief on a basis entirely different from the bases advanced in the propria persona petition: In 1995, the juvenile court included Dustin’s Penal Code section 647.6 violation among the bases of the DJF commitment, but it did so without exercising its discretion to omit that offense, so the 1995 commitment order should be amended to remove the reference to section 647.6, thereby relieving Dustin of the obligation to register as a sex offender, and consequently, rendering inapplicable CDCR Policy No. 07-36. The superior court accepted this argument and issued an order amending the 1995 commitment. The People filed this appeal.
In his appellate briefs, Dustin raises two additional constitutional arguments. First, he says the application of Penal Code section 3003.5 to him through a parole condition violates the equal protection provisions of the federal and state Constitutions because the Legislature passed amendments to Welfare and Institutions Code sections 731 and 733 effective September 1, 2007, under which a violation of Penal Code section 647.6 can no longer be a basis for a DJF commitment. Juveniles who violate section 647.6 after September 1, 2007, therefore cannot be required to register as sex offenders for that violation and are not subject to the residency restriction of Penal Code section 3003.5, subdivision (b). Dustin says this makes it unconstitutional to apply the residency restriction to earlier juvenile violations of section 647.6.
Second, Dustin argues that the residency restriction imposes a severe burden on his liberty, making affordable housing in Tulare County virtually impossible to find and forcing him to choose between leaving his family and becoming transient or homeless and being reincarcerated for violating his parole conditions. He contends that these consequences mean the residency restriction is a form of punishment and therefore cannot be applied to him because he did not have the opportunity to have a jury trial on the section 647.6 charge. The Fourth District Court of Appeal recently accepted the same argument and the Supreme Court granted review. (In re J.L. (2010) 190 Cal.App.4th 1394, review granted Mar. 2, 2011, S189721.)
We agree with the People that the record does not support the superior court’s finding that, in 1995, the juvenile court failed to exercise its discretion when it included Dustin’s Penal Code section 647.6 violation as a basis for the DJF commitment. We remand to enable the superior court to issue an order to show cause and consider Dustin’s remaining theories, both those in his original petition and those added in his appellate briefs, after permitting Dustin to amend his petition to add factual support that may be necessary under In re E.J., supra, 47 Cal.4th 1258.
We do not consider either the theories advanced in Dustin’s original petition or those added in his appellate briefs. Some of the theories in his original petition were rejected by the Supreme Court in In re E.J., supra, 47 Cal.4th 1258, while others remain viable under that case; those that remain viable require factual findings that should be made in the superior court. As for the constitutional theories added in Dustin’s appellate briefs, we also do not decide them here for reasons we will explain.
We grant Dustin’s request to stay enforcement of the parole conditions and the registration requirement while his petition is pending. Finally, we direct the superior court to reappoint counsel to handle the proceedings on remand.
FACTUAL AND PROCEDURAL HISTORIES
The appellate record does not contain any reporters’ transcripts of the underlying juvenile proceedings. As a result, our description of the facts is based on probation reports.
Dustin was born on December 22, 1978. On November 25, 1992, when he was 13, he grabbed two female schoolmates, one after the other, and pointed the blade of a pocketknife at them. He had been dating one of the girls but was no longer doing so. He claimed she and the other girl fabricated the story as revenge for the breakup. The district attorney filed a juvenile wardship petition alleging two misdemeanor violations of Penal Code section 417, subdivision (a)(1), exhibiting a deadly weapon other than a firearm. After a contested hearing, the court found the petition true, placed Dustin on probation, and returned him to his mother.
Subsequent statutory references are to the Penal Code unless noted otherwise.
On June 8, 1995, when Dustin was 16, police officers found him and two other boys in possession of a stolen car. On June 19, 1995, Dustin and another boy were seen urinating on a public walkway inside an apartment complex. As they did so, a six-year-old resident of the complex walked by. According to a witness, Dustin touched the child’s face and then pulled his pants down to expose his buttocks. The child reported that Dustin “mooned” her but denied that he touched her.
On July 11, 1995, the district attorney filed a juvenile wardship petition alleging that Dustin annoyed or molested a child, a misdemeanor (§ 647.6); received a stolen car, a felony (former § 496, subd. (1)); and unlawfully took a car, a felony (Veh. Code, § 10851, subd. (a)). The petition also alleged three more offenses: misdemeanor petty theft (§ 484, subd. (a)), misdemeanor assault (§ 242), and felony burglary (§ 459). Dustin pleaded no contest to the charge of unlawfully taking a car (Veh. Code, § 10851, subd. (a)). On August 11, 1995, after a contested hearing, the court found true the allegation of annoying or molesting a child. The remaining counts were dismissed. At the disposition hearing on August 22, 1995, the court placed Dustin on probation and committed him to the Probation Youth Facility to complete its six-month boot camp program. According to the probation officer, Dustin was at this time a “White Pride” gang member and had a swastika tattoo on his shoulder, but wanted to have it removed; he also had been a daily user of marijuana and methamphetamine for a number of years but claimed he had not used either substance for five months.
Dustin escaped from the Probation Youth Facility on September 10, 1995, walking out though the back gate. Since entering the facility on August 23, 1995, Dustin generally had been behaving well, except for an incident in which he and another cadet sent a racist note to a third cadet. Dustin claimed, however, that some staff members had started a rumor that he had raped his sister. He also claimed that on September 10 two or three staff members beat him in a bathroom with a metal flashlight. He escaped that night because he feared for his safety.
On October 31, 1995, while Dustin was still absent from the Probation Youth Facility, he and another boy walked into a florist’s shop in Visalia. The other boy grabbed a bouquet of roses and the two boys left. They fled in a pickup truck, which they later abandoned and fled from on foot, leading to their capture by police. Dustin first gave the police a false name and birth date, but later gave his real name and confessed that he was a boot camp escapee. The truck had been reported stolen.
The record of the juvenile court proceedings in the period after Dustin’s escape is not entirely clear. On September 20, 1995, the district attorney filed a juvenile wardship petition alleging that Dustin violated the terms of his probation and committed a misdemeanor escape (Welf & Inst. Code, § 871, subd. (a)). On November 2, 1995, after Dustin’s arrest, the district attorney filed another juvenile wardship petition, again alleging that Dustin violated the terms of his probation and now charging five new violations: (1) unlawfully taking a car (Veh. Code, § 10851, subd. (a)), a felony; (2) receiving a stolen car (former § 496, subd. (1)), a felony; (3) escaping from custody (§ 4530, subd. (b)), a felony; (4) petty theft of the roses (§ 484, subd. (a)), a misdemeanor; and (5) giving false information to a police officer (§ 148.9, subd. (a)), a misdemeanor. This petition did not state that it was an amended petition or specify whether it was intended to supersede the petition filed on September 20, 1995.
A minute order also dated November 2, 1995, stated that Dustin admitted the allegations in the petition, but it did not say which of the two petitions it was referring to. A minute order dated November 3, 1995, stated that Dustin denied the allegations in the petition, again without specifying which petition and without explaining whether the denial superseded the admission of the previous day. On November 27, 1995, Dustin admitted violating the terms of his probation and admitted unlawfully taking a car as a misdemeanor.
At the disposition hearing on December 20, 1995, the juvenile court apparently interpreted these proceedings as amounting to an admission of the misdemeanor escape alleged in the September 20 petition and an admission, as a misdemeanor, of the vehicle taking alleged in the November 2 petition. It committed Dustin to DJF based on those two offenses, plus the misdemeanor of annoying or molesting a child and the felony of taking a car, which were alleged in the petition of July 11. The court stated a maximum period of confinement of four years, calculated as follows: Three years for the felony vehicle taking alleged in the July 11 petition; four months for annoying or molesting a child as alleged in the July 11 petition; four months for the misdemeanor escape alleged in the September 20 petition; and four months for the misdemeanor vehicle taking from the November 2 petition.
The appellate record does not show when Dustin was released from incarceration for his juvenile offenses, when he was incarcerated again as an adult, or precisely what adult offense or offenses he committed. On August 10, 2009, he was released on parole after serving a prison term for a drug offense.
A number of relevant changes in the law took place between Dustin’s 1995 juvenile offenses and his 2009 release on parole. In 1995, section 290, subdivision (d), provided that any person who was committed to DJF for violating section 647.6 (among other offenses) and then discharged was required to register as a sex offender. Section 290.008, subdivisions (a) and (c), contain the same provisions today, so the law is unchanged in that respect. On November 8, 2006, Proposition 83 became effective. It imposed residency restrictions on all persons required to register as sex offenders. It provides that “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.” (§ 3003.5, subd. (b).)
Section 3003.5 does not state that a failure to adhere to the residency restriction is a public offense and does not include any penalty for a violation. The CDCR, however, adopted Policy No. 07-36 in 2007 to enforce the restriction against parolees. The policy mandates that parolees who are required to register as sex offenders must comply with section 3003.5, subdivision (b), as a condition of parole. (CDCR, Policy No. 07-36: Implementation of Jessica’s Law (Aug. 17, 2007); see Cal. Code Regs., tit. 15, § 2616, subd. (a)(15); In re E.J., supra, 47 Cal.4th at p. 1266.)
Also in 2007, the Legislature enacted amendments to sections 731 and 733 of the Welfare and Institutions Code, which affect the question of whether a violation of section 647.6 makes a juvenile eligible for a commitment to DJF. (Stats. 2007, ch. 175, §§ 19, 22, 37.) Before the amendments, juvenile courts had broad discretion to commit wards to DJF; after the amendments, courts could commit wards to DJF only for specified offenses. (See In re N.D. (2008) 167 Cal.App.4th 885, 890-892.) As amended, Welfare and Institutions Code section 731 provides that the juvenile court can commit a ward to DJF “if the ward has committed an offense described in subdivision (b) of Section 707 and is not otherwise ineligible for commitment to the division under Section 733.” (Welf. & Inst. Code, § 731, subd. (a)(4).) Section 647.6 is not among the offenses listed in Welfare and Institutions Code section 707, subdivision (b).
Dustin filed his habeas petition on January 11, 2010. He was not represented by counsel at the time, but the petition appears to have been prepared by an attorney for use in multiple cases similar to Dustin’s. It has the proper form of a legal pleading and presents sophisticated legal arguments, with facts handwritten by Dustin in blank spaces provided by the preparer of the document.
The petition, which was verified, stated that Dustin was informed by CDCR that, as a condition of his parole, he would be prohibited from residing within 2, 000 feet of a school or park where children regularly gather. He was told by parole officials that his current housing was noncompliant and he would have to move within two weeks. The petition stated that it was “petitioner’s belief that almost every residential neighborhood in the area in which he lives is off limits.” A brief filed about six weeks later by Dustin’s appointed counsel stated that Dustin and his fiancée were then living in a house that complied with the residency restriction but that it was “too expensive for the couple to continue renting.”
Dustin wrote by hand that he also was told “I can’t visit with minors in my immediate family.…” Further, “My [fiancée] is pregnant and Parole is telling me that when my child is born I must either move out and leave my [fiancée and] child to fend for themselves … or give my child to someone so that I can live with my [fiancée].”
The brief filed by counsel asserted that Dustin also will be required to wear an electronic monitoring device. There is no evidence in the appellate record, however, that this condition was imposed. Section 3004 provides that the parole authority may impose this condition on parolees generally and that those convicted of felony violations of registrable sex offenses shall be subject to the condition. Dustin’s section 647.6 violation was a misdemeanor.
The petition made five arguments on the merits regarding the parole conditions imposed on Dustin. First, it contended that the condition prohibiting Dustin from living within 2, 000 feet of a school or park is not “reasonable” within the meaning of section 1203.1, subdivision (j), and the test of People v. Dominguez (1967) 256 Cal.App.2d 623 and People v. Lent (1975) 15 Cal.3d 481. It is unreasonable because, among other reasons, it excessively burdens his constitutional right to reside with his family, is not tailored to advance the goals of risk management and rehabilitation in Dustin’s particular case (which did not involve any deviant sexual attraction to children), and is not reasonably related to the state’s interests in general because it increases the chances of recidivism by making transience or homelessness likely, while doing little or nothing to prevent future criminal acts. The prepared portions of the petition referred to the residency restriction of section 3003.5 and did not specifically refer to the condition forbidding Dustin to be in the presence of minors, including his own child, but under a fair interpretation of the entire petition, including Dustin’s handwritten statements, it argues that this condition also is unreasonable.
Second, the petition argued that the condition imposing the section 3003.5 residency restriction is unconstitutionally vague. It does not explain what it means by “reside, ” does not say how the 2, 000 feet are to be measured, and does not define a park where “children regularly gather.” (§ 3003.5, subds. (a), (b).)
Third, Dustin contended that the application of section 3003.5 to those who committed sex offenses before that section became effective in 2006 violates section 3. Section 3 provides: “No part of [the Penal Code] is retroactive, unless expressly so declared.”
Fourth, the petition claimed the application of section 3003.5 to those who committed sex offenses before it became effective violates the ex post facto clause of the federal Constitution. It cited United States Supreme Court cases stating that a criminal statute is an ex post facto law if it makes the punishment for a crime more burdensome after the crime’s commission.
Finally, the petition argued that section 3003.5, subdivision (b), should be read in pari materia with section 3003.5, subdivision (a), which provides that certain parole conditions apply to those released on parole after serving prison terms for registrable sex offenses. The petition claims that, although section 3003.5, subdivision (b), does not contain similar language, it should not be applied to parolees like Dustin, who were released after serving prison terms for other offenses but committed registrable sex offenses in the past.
On February 1, 2010, less than a month after Dustin filed his petition, the Supreme Court issued its decision in In re E.J., supra, 47 Cal.4th 1258. The petitioners in that case were registered sex offender parolees who were convicted before the passage of Proposition 83 and on whom the CDCR imposed the section 3003.5, subdivision (b), residency restriction as a parole condition pursuant to Policy No. 07-36. (In re E.J., supra, at pp. 1264, 1266-1267.) They made arguments identical to Dustin’s based on section 3 and the ex post facto clause. The Supreme Court rejected these arguments. (In re E.J., supra, at pp. 1271-1272; 1279.)
The petitioners in In re E.J. also made arguments that “section 3003.5(b) is an unreasonable, vague and overbroad parole condition that infringes on various state and federal constitutional rights, ” much like Dustin’s arguments on these points. (In re E.J., supra, 47 Cal.4th at p. 1280.) The Supreme Court held: “In contrast with the retroactivity and ex post facto issues we have addressed above, petitioners’ remaining constitutional claims present considerably more complex ‘as applied’ challenges to the enforcement of the new residency restrictions as parole violations in the particular jurisdictions to which each petitioner has been paroled.” (Id. at p. 1281.) It concluded that evidentiary hearings were necessary to resolve these issues and transferred the cases to the Courts of Appeal with directions to transfer them to the superior courts to conduct further proceedings. The court continued in effect a stay on enforcement of the parole conditions. (Id. at pp. 1283-1284.)
The superior court appointed the public defender as counsel to represent Dustin on February 8, 2010. Counsel filed a supplemental memorandum of points and authorities on February 22, 2010. His strategy did not depend on a challenge to Proposition 83 on its face or as applied, but instead on an attack on the 1995 commitment order. A juvenile who commits a sex offense is required to register only if committed to DJF and only if the commitment is for that offense. (§ 290.008, subd. (a); In re Alex N. (2005) 132 Cal.App.4th 18, 23-24.) The supplemental memorandum argued that, when the juvenile court committed Dustin to DJF, it failed to exercise its discretion not to “aggregate” the section 647.6 and vehicle-taking offenses from the earlier petition along with the offenses from the current petitions as bases for the commitment. If it had decided not to aggregate the section 647.6 violation, Dustin would never have been required to register as a sex offender and therefore would not be subject to the residency restriction of section 3003.5 or the parole conditions based on Policy No. 07-36. Counsel relied on In re Alex N., supra, 132 Cal.App.4th 18, in which the Court of Appeal held that a juvenile court must exercise discretion when it decides which offenses to aggregate to form the basis of a DJF commitment. The Alex N. court reversed a DJF commitment and remanded because the juvenile court stated on the record, incorrectly, that it did not have discretion not to aggregate an earlier offense. (Id. at pp. 23-25.) Counsel in this case asserted that, because nothing in the record affirmatively showed that the juvenile court knew it had this discretion and exercised it, the court must have simply adopted the recommendation of the probation officer. Counsel asked the court to order an amendment to the 1995 commitment order, deleting the reference to the section 647.6 violation.
The court held a hearing on February 23, 2010, during which it stated its inclination to grant the relief requested in the supplemental memorandum. It still did not issue a writ or an order to show cause, so the district attorney was not given an opportunity to file a formal return. Instead, the court gave the district attorney’s office until March 3, 2010, “to do whatever it needs to do.” On March 2, 2010, the People filed a brief titled “Informal Response to Petition for Writ of Habeas Corpus.” The court heard arguments the following day.
On March 22, 2010, the court issued an order granting the relief requested in the supplemental memorandum filed by the public defender’s office: The 1995 order committing Dustin to DJF was to be amended to delete the reference to the sex offense. The order did not state grounds, but it is clear from the nature of the relief granted that the court was ruling on the basis of the arguments in the supplemental memorandum, not those in Dustin’s original propria persona petition. The court stated:
“It is the court’s intention not to aggregate the Penal Code § 647.6 offense with the commitment to the [DJF] … and, in doing so, to make inapplicable the registration requirement set forth in Penal Code § 290(d) (1995 version) and now contained in Penal Code § 290.008(a), thus relieving Petitioner of any requirement to register as a sex offender as a result of the Penal Code § 647.6 allegation contained in the July 1995 petition and found true on or about August 14, 1995.”
The People, through the district attorney, filed this appeal. In their opening brief, they made several procedural arguments: The court lacked jurisdiction to hear a habeas petition by a petitioner no longer in custody; Dustin’s claim that the 1995 DJF commitment was erroneous in including the section 647.6 violation is untimely; that claim should have been raised on direct appeal; the petition was improperly pled because Dustin should have attached copies of reporters’ transcripts of the 1995 proceedings and other materials to it; and the court should have issued a writ or an order to show cause before granting relief, instead of summarily granting it after receiving the informal response. On the merits, the People argued that there was no basis in the record for the court’s conclusion that the juvenile court failed to exercise its discretion when it included the section 647.6 violation as part of the basis of the commitment. The mere lack of an affirmative statement by the juvenile court that it was aware of its discretion is not enough, the People argued, since there is a presumption that trial courts know and follow the applicable law.
In his respondent’s brief filed October 29, 2010, Dustin argued that the superior court granted relief correctly. Dustin’s arguments in defense of the superior court’s order were limited to the procedural issues and did not include any explanation of how the record supported the conclusion that the juvenile court failed to exercise its discretion. Dustin also argued for the first time, that, even if the court’s order were not correct, we should hold that he is not obligated to register as a sex offender because the 2007 amendments to the Welfare and Institutions Code created an equal protection violation by rendering the registration requirement inapplicable to juveniles who violate section 647.6 after the effective date of the amendments. He contended that we should address this issue, although it was raised for the first time on appeal, because it was a pure issue of law and because his appointed counsel rendered ineffective assistance in not raising it in the superior court.
On December 16, 2010, the same day the People filed their reply brief, the Fourth District Court of Appeal filed its opinion in In re J.L., supra, 190 Cal.App.4th 1394. The court in that case held that the section 3003.5 residency restriction is a severe form of punishment and cannot constitutionally be imposed on an offender who has not been given an opportunity for a jury trial and therefore cannot be based on findings of a juvenile court. (In re J.L., supra, at pp. 1399-1401.)
Dustin filed a supplemental brief based on In re J.L. on January 10, 2011. He argued that we should adopt the Fourth District’s analysis. He also argued, again, that we should address the issue, although it was raised for the first time on appeal, because it was a pure issue of law and his counsel rendered ineffective assistance by not raising it earlier.
Dustin filed a second supplemental respondent’s brief on February 8, 2011. This brief discussed the ex post facto claim rejected by the Supreme Court in In re E.J., supra, 47 Cal.4th 1258. The brief acknowledged that we are bound by E.J. and raised the issue only for the purpose of preserving it for subsequent review.
The district attorney filed a supplemental appellant’s reply brief on March 2, 2011. It argued that the E.J. opinion had already rejected the notion that the residency restriction of section 3003.5 is a form of punishment, so we should draw the conclusion that a jury trial is not required for its imposition. It further argued that, even if the residency restriction is a form of punishment, a jury trial was not required here because it was imposed as a parole condition.
The supplemental reply brief also argued that Dustin’s supplemental briefs should be stricken because they were not served on the Attorney General, as required by the California Rules of Court. Dustin’s appellate counsel filed a declaration in this court on March 11, 2011, stating that she had corrected this oversight.
DISCUSSION
I. The court erred in amending the 1995 commitment order
We agree with the People’s argument that the superior court erred when it accepted Dustin’s counsel’s argument that the juvenile court’s 1995 order committing Dustin to DJF was erroneous and should be amended. The linchpin of counsel’s argument was that the juvenile court failed to exercise its discretion not to include the sex offense as a basis for the commitment. It is true that the juvenile court had that discretion and was required to exercise it. (In re Alex N., supra, 132 Cal.App.4th at pp. 24-25.) There is nothing in the appellate record, however, to support a finding that it was unaware of its discretion or failed to exercise it. Dustin did not submit transcripts of any of the juvenile court hearings, so we do not know what oral statements, if any, the court might have made on this subject. The record consists only of the court’s orders and the probation reports, which are silent on the matter of the court’s discretion to exclude offenses from the commitment order. We cannot infer an abuse of discretion from this silence. In effect, Dustin asks us to presume from the record’s silence that the court did not know its duty. The Supreme Court has held:
“[S]uch a presumption would … require the reviewing court ‘to ignore a cardinal principle of appellate review’: A ‘“‘judgment or order of the lower court is presumed correct [, and a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’” [Citation.]’ As this court has stated, ‘we apply the general rule “that a trial court is presumed to have been aware of and followed the applicable law. [Citations.]”’ (People v. Stowell (2003) 31 Cal.4th 1107, 1114, 6 Cal.Rptr.3d 723, 79 P.3d 1030.) ‘This rule derives in part from the presumption of Evidence Code section 664 “that official duty has been regularly performed, ”’ and thus when ‘a statement of reasons is not required and the record is silent, a reviewing court will presume the trial court had a proper basis for a particular finding or order.’ (Ibid.)” (In re Julian R. (2009) 47 Cal.4th 487, 498-499.)
There was no basis for a finding that the juvenile court abused its discretion by failing to exercise it. Perhaps it was in recognition of this that Dustin’s appellate counsel decided to make no argument on this issue. Dustin did not assert any other basis for that relief and no other basis appears. The order was error and must be reversed.
Since we are reversing the order on the merits, it is not necessary to address the procedural reasons the People assert for reversing it. We will be remanding for decisions on other issues, but none of those issues involve relief based on alleged defects in the 1995 proceedings. The People concede that the superior court has jurisdiction to grant habeas relief based on claims arising from the current parole conditions themselves.
We do briefly address one of the procedural issues the People have raised. Although the superior court did not describe its order as an order granting relief on a petition for habeas corpus, that is what it appears to be, since a petition for habeas corpus is what Dustin filed. The People are correct that, in granting this relief, the court bypassed the necessary procedures. Before granting relief on a habeas petition, the court must issue either an order to show cause or a writ of habeas corpus. (People v. Romero (1994) 8 Cal.4th 728, 740.) A “writ of habeas corpus” here means not the ultimate relief requested by the petitioner but the intermediate step by which the court directs the People to submit a return. (Id. at p. 738.) Allowing an informal response is not an adequate substitute for this procedure. (Id. at pp. 740-741.) If “the informal response does not persuade the court that the petition’s claims are lacking in merit, then the court must proceed to the next stage by issuing an order to show cause or the now rarely used writ of habeas corpus. Deficiencies in the informal response do not provide a justification for shortcutting this procedural step.” (Id. at p. 742, italics added.) Further, the fact that courts can grant summary relief on petitions for writs of mandate does not mean they can do the same on petitions for writs of habeas corpus. (Ibid.) The People can, if they choose, waive the right to submit a return. (Id. at p. 740, fn. 7.) On remand, the court is directed to follow the procedures described in Romero.
II. Dustin’s claims that the parole conditions are unreasonable and vague are remanded
In his original propria persona petition, Dustin made a claim, similar to claims made in In re E.J., supra, 47 Cal.4th 1258, that the parole conditions imposed on him were invalid because they were unreasonable under established standards. In Dustin’s case, this claim covered not only the residency restriction based on section 3003.5, subdivision (b), but also the separate condition forbidding him to be in the presence of minors, including his own child. Dustin also claimed that the terms of the section 3003.5, subdivision (b), restriction were unconstitutionally vague.
In E.J., the Supreme Court concluded that the petitioners did not provide enough evidence to support their claims that the residency restriction was unreasonable because compliant housing was virtually unavailable and because the CDCR had an obligation to assist them in finding compliant housing and had failed to do so. The court described these contentions as “‘as applied’” challenges and included the petitioners’ vagueness claims among them. (In re E.J., supra, 47 Cal.4th at pp. 1281-1283.) The court held:
“[W]e therefore conclude that evidentiary hearings will have to be conducted to establish the relevant facts necessary to decide each such claim. The trial courts of the counties to which petitioners have been paroled are manifestly in the best position to conduct such hearings and find the relevant facts necessary to decide the claims with regard to each such jurisdiction. These facts would include, but are not necessarily limited to, establishing each petitioner’s current parole status; the precise location of each petitioner’s current residence and its proximity to the nearest ‘public or private school, or park where children regularly gather’ (§ 3003.5(b)); a factual assessment of the compliant housing available to petitioners and similarly situated registered sex offenders in the respective counties and communities to which they have been paroled; an assessment of the way in which the mandatory parole residency restrictions are currently being enforced in each particular jurisdiction; and a complete record of the protocol CDCR is currently following to enforce section 3003.5(b) in those respective jurisdictions.” (In re E.J., supra, 47 Cal.4th at pp. 1283-1284.)
It ordered the cases to be returned to the superior courts to conduct hearings. (Id. at p. 1284.)
We remand Dustin’s unreasonable-parole-condition and vagueness claims to the superior court for further proceedings similar, but not necessarily identical, to those contemplated by the Supreme Court in E.J. We cannot say whether the facts described by the Supreme Court are precisely the same facts that will be necessary in this case; that is a matter for the superior court to determine. To the extent that the facts described in In re E.J. are necessary, we interpret the Supreme Court’s discussion as authorizing any discovery measures the superior court may deem necessary to obtain information in the possession of the CDCR.
With respect to at least one claim, the factual inquiries that will be necessary here are different from those the Supreme Court discussed in E.J.: Dustin’s claim that the CDCR imposed on him an unreasonable condition forbidding him to be in the presence of his child and other children. This claim has nothing to do with the locations of parks or schools and will not require an inquiry into the stock of available housing or CDCR protocols or policies relating to enforcement. The question will be whether the parole condition is reasonable under the applicable law in light of the nature of Dustin’s offense, the severity of the burden on his rights to reside with his family and raise his child, and other relevant circumstances.
Given the potential complexity of the evidentiary showing contemplated by the E.J. court, the superior court should again appoint counsel for Dustin on remand. The superior court need not consider on remand the ex post facto and section 3 claims the Supreme Court rejected in E.J. The only other argument from Dustin’s original petition is the argument that, despite its plain language, section 3003.5, subdivision (b), must be intended to apply only to parolees released after serving a prison term for a registrable sex offense, and not simply to all those required to register. The court may consider this argument on remand.
The People argue that the Supreme Court rejected this argument in In re E.J., but this is not correct. The Supreme Court stated that the plain language of section 3003.5, subdivision (b), means any person required to register must adhere to the residency restrictions (In re E.J., supra, 47 Cal.4th at p. 1272), but it did not discuss any argument like Dustin’s that the provision must be limited to those who have been paroled from prison terms imposed for registrable offenses because section 3003.5, subdivision (a), is limited in that manner. The argument may not be persuasive, but it is not the case that the Supreme Court has already rejected it.
We reject the People’s argument that we should order a summary denial of the petition without prejudice instead of remanding. The People contend we should order a summary denial for reasons of “judicial economy.” To the contrary, judicial economy supports a remand, as opposed to dismissal and refiling. The People also argue we should order summary denial because Dustin’s petition fails to allege facts of the kind the Supreme Court discussed in E.J. In E.J. itself, however, the Supreme Court directed the cases to be returned to the superior courts; it did not order the petitions summarily denied. The People say the petitioners in E.J. “filed declarations and various materials” to support their claims while Dustin did not. This is irrelevant, however, since the Supreme Court found that the petitioners’ factual submissions were inadequate. Its disposition was to return the cases to the superior courts for further factual development, not to order the petitions denied.
III. Dustin’s new constitutional claims are remanded
Dustin urges us to review his two new constitutional claims not previously considered by the superior court: (1) the contention that the residency restriction is a form of punishment and therefore cannot properly be imposed on him without a jury trial; and (2) the argument that the Legislature created an equal protection violation when, in 2007, it amended the Welfare and Institutions Code to eliminate juvenile courts’ authority to commit wards to DJF for violating section 647.6.
The People point out that Dustin forfeited these claims by failing to raise them in the trial court. The People acknowledge, however, that we have discretion to address these claims in spite of the forfeiture. Dustin states that, “if appellant argues that this Court should refuse to address the equal protection issue on appeal, [Dustin] intends to file a motion asking the Court to expand his appointment to raise the issue in a petition for writ of mandate or habeas corpus to be heard in conjunction with this appeal.” No such motion has been filed.
Dustin argues that if he forfeited the issues, he did so through the ineffective assistance of his appointed counsel, and we should grant relief by reaching the merits of the issues. Dustin has not established, however, that he had a constitutional right to counsel in the first place under the circumstances of this case. Although the California Supreme Court has granted capital defendants a right to appointed counsel to prosecute a habeas petition, and has declared that noncapital defendants have a right to appointed counsel in habeas proceedings after an order to show cause has been issued, there is no similar right for noncapital defendants before an order to show cause has been issued. (In re Sanders (1999) 21 Cal.4th 697, 717, fn. 11.) No order to show cause was ever issued in this case. There is no federal constitutional right to counsel in state habeas proceedings. The United States Supreme Court has held that, “[c]onsequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.” (Coleman v. Thompson (1991) 501 U.S. 722, 752.) Since Dustin has not shown that he had a right to counsel under either state or federal law in the pre-OSC habeas proceedings at issue in this case, he has not shown that he was denied the right to effective counsel.
The only question that remains is whether we should exercise our discretion to consider Dustin’s new constitutional claims. We decline to do so. The question of whether the residency restriction is a form of punishment and therefore cannot be imposed without a jury trial is pending in the Supreme Court in In re J.L., supra, 190 Cal.App.4th 1394. Arguably, the Supreme Court already decided this issue in In re E.J., when it held that section 3003.5, subdivision (b), is not an ex post facto law when applied as a parole condition after its enactment for offenses committed before, partly because “it does not additionally punish for the sex offense conviction or convictions that originally gave rise to the parolee’s status as a lifetime registrant under section 290.” (In re E.J., supra, 47 Cal.4th at p. 1280, italics added.) To grant relief to Dustin on this theory could lead to reversal by the Supreme Court and a remand for a decision on Dustin’s claims based on the asserted unreasonableness of the parole conditions. At the same time, rejecting the jury-trial argument now would still require a remand to address the unreasonableness claims.
Similar considerations apply regarding Dustin’s argument that the Legislature created an equal protection violation when it amended the Welfare and Institutions Code to limit the offenses for which a DJF commitment is possible. Rejecting this argument now means the unreasonableness issues still need to be decided on remand. Accepting the argument now could well lead to reversal by the Supreme Court and, again, lead to a remand for decision of the unreasonableness issues.
Another consideration against exercising our discretion to reach this equal protection claim is that it has not been briefed adequately. The sole argument the People make against Dustin’s position is that the prerequisite of a classification treating similarly situated groups differently is not satisfied. The People claim a juvenile could still be committed to DJF for a violation of section 647.6 and required to register so long as the juvenile court also found the juvenile was eligible for a DJF commitment based on another offense. Virtually the same argument was rejected in In re Alex N., supra, 132 Cal.App.4th at pages 23-24 (ward not required to register unless commitment was because of enumerated sex offense), and the People do not explain why that decision might have been incorrect. Further, there is little or no discussion in either party’s briefs of the possibility that a higher level of scrutiny than rational-basis review is required because the residency restriction, unlike the registration requirement, arguably burdens offenders’ fundamental rights to travel and reside with family members.
For all these reasons, we decline to exercise our discretion to consider these new constitutional issues in this appeal.
IV. Enforcement of the parole conditions and the registration requirement is stayed
In In re E.J., supra, 47 Cal.4th at page 1284, the Supreme Court continued in effect an order staying enforcement against the petitioners of the section 3003.5, subdivision (b), parole condition. No stay is currently in effect in this case, since the superior court’s order had the effect of removing all the conditions and requirements to which Dustin objects. In the event we reverse the trial court’s order, he asks us to order a stay, to remain in effect on remand, of enforcement of the registration requirement and the parole conditions that prevent him from living within 2, 000 feet of a school or park and restrict him from living with his child.
The People’s briefs contain no arguments against this requested relief. There is no indication in the record that Dustin has been accused of any form of sexual misconduct since the 1995 offense where he exposed his buttocks to a child. Further, the People do not claim that Dustin poses any current threat to his child or other minors in his family. Since Dustin is under parole supervision, the authorities will be able to keep track of him. The requested stay is granted.
DISPOSITION
The order amending the juvenile court’s DJF commitment order filed December 20, 1995, is reversed. The case is remanded to the superior court with directions to (1) reappoint counsel for Dustin; (2) allow Dustin to amend his petition; (3) conduct further proceedings to permit additional factual development consistent with the discussion in part II of the Discussion above; (4) consider those claims in Dustin’s original petition that have not been rejected by the Supreme Court’s decision in In re E.J., supra, 47 Cal.4th 1258; and (5) consider the claims Dustin has raised for the first time in this appeal, if necessary, and if Dustin chooses to pursue them.
While the case is on remand, enforcement is stayed of the requirement that Dustin register as a sex offender and of the parole conditions requiring Dustin to comply with section 3003.5, subdivision (b), and prohibiting him from being in the presence of minors. The superior court must issue an order to show cause or a writ before it ultimately grants any relief on Dustin’s habeas petition.
WE CONCUR: Detjen, J., Franson, J.