In re R.C.
Filed 4/11/13 In re R.C. CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
>
In re R.C., a Person Coming Under the Juvenile Court Law. | B238068 (Los Angeles County Super. Ct. No. YJ31911) |
THE PEOPLE, Plaintiff and Respondent, v. R.C., Defendant and Appellant. |
APPEAL from
an order of the Superior Court
of
County.
Stephanie M. Davis, Juvenile Court Referee. Vacated and remanded.
Bruce G.
Finebaum, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Blythe J.
Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
* * * * * *
R.C.
(appellant), born in 1993, appeals a juvenile court dispositional order
continuing him as a ward of the court and committing him to the Department of
Juvenile Justice (DJJ).
name="_ftnref1" title="">[1] Section 733, subdivision (c) of the Welfare
and Institutions Code
name="_ftnref2" title="">[2] precludes the court from committing a minor to
DJJ unless, among other things, “the most recent offense alleged in any
petition and admitted or found to be true by the court†is a DJJ-eligible
offense. Appellant contends that section
733, subdivision (c) bars the court from committing him to DJJ because his most
recent offense was not a DJJ-eligible offense.
Appellant contends the most recent DJJ-eligible offense date is
controlling. The People assert the most
recent filed and adjudicated petition date controls.
We find no
ambiguity in the statutory language. We
interpret the statute’s reference to “the most recent offense alleged in any
petition†to mean the offense that occurred last in chronological order. We vacate the juvenile court’s order
committing appellant to DJJ and remand the matter for proper disposition.
FACTUAL AND
PROCEDURAL BACKGROUND
In light of
the sole issue raised on appeal, our recitation of the facts that comprise the
underlying offenses will be in somewhat summary form.
On September 9, 2010, appellant was a
resident of the group home at the El Nido campus of Hathaway-Sycamores.
between appellant and Gary C., another resident of the group home. Gary C. received medical treatment for a
black eye and facial swelling.
On December 23, 2010, appellant was
involved in an incident with probation officers Angela Smith and Adrian Butler.
On December 29, 2010, a petition under
section 602 was filed against appellant, who was then 17 years old, alleging
one felony count of resisting an executive officer (Pen. Code, § 69), and one
misdemeanor count of assault on a peace officer (Pen. Code, § 240)
(Petition 1). The allegations concerned
the incident that occurred on December 23,
2010, involving Smith and Butler.
On February 2, 2011, appellant admitted
the felony and the misdemeanor was dismissed.
On May 23, 2011, appellant kicked and
struck a deputy probation officer for Los Angeles
County as appellant was being
escorted back to his room at the Dorothy
Kirby Center.
On September 9, 2011, the district
attorney filed a notice of violation of probation pursuant to section 777. The allegation concerned the incident on May 23, 2011, at the Dorothy
Kirby Center.
On September 26, 2011, another petition
pursuant to section 602 was filed against appellant alleging assault by means
likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1))
(Petition 2). The allegation concerned
the incident involving Gary C. at the El Nido group home on September 9, 2010.
On October 18, 2011, the juvenile court
found true the allegation in Petition 2.
Disposition was continued pending adjudication on the September 9, 2011, probation violation
notice.
On November 16, 2011, the juvenile
court found appellant was in violation of probation based on the allegation
filed in the September 9, 2011
notice.
On December
1, 2011, the juvenile court conducted a disposition
hearing on (1) Petition 1; (2) the section 777 probation violation;
and (3) Petition 2. The hearing
concluded on December 5, 2011. Defense
counsel argued that appellant was not eligible for DJJ because his most recent
offense—admitted and found true in Petition 1—was not DJJ eligible. The court stated that the relevant date was
not when the offense occurred but “when the petition was sustained and when the
petition is brought before the court for purposes of disposition.†The court noted that Petition 2 contained a
section 707, subdivision (b) offense which made appellant eligible for
DJJ. Appellant was adjudged a ward of
the court and committed to DJJ for a maximum term of confinement of eight
years, with credit for 813 days in custody.
He filed a timely notice of appeal.
CONTENTION
Appellant argues that the “most
recent offense†admitted and found to be true—resisting an executive officer
which occurred on December 23, 2010 and was alleged in a December 29, 2010
section 602 petition—was a non-section 707, subdivision (b) offense, and
therefore, section 733 precludes his DJJ commitment. The People argue the phrase “most recent
offense alleged in any petition†does not refer to the date the offense was
committed, but to the date the petition was filed. The People contend R.C.’s most recent
petition filed on September 26, 2011 in which he was adjudicated to have
committed a section 707 subdivision (b) eligible offense on September 9, 2010,
qualifies him for DJJ commitment.
RELEVANT LAW
Section 731 authorizes a
juvenile court to commit a juvenile who has been adjudged a ward of the court
to the DJJ “if the ward has committed an offense described in subdivision (b)
of Section 707†and the ward “is not otherwise ineligible for commitment†to
DJJ “under Section 733.†(§ 731, subd.
(a)(4).)
Section
707, subdivision (b) lists a series of serious offenses for which a minor may
be tried as an adult if the minor is 16 years of age or older and not amenable
to treatment in the juvenile court.
name="_ftnref4" title="">[4]
Section 733
states in pertinent part: “A ward of the
juvenile court who meets any condition described below shall not be committed
to [DJJ]: [¶] . . . [¶]
(c) The ward has been or is adjudged a ward of the court pursuant to Section
602, and the most recent offense alleged in any petition and admitted or found
to be true by the court is not described in subdivision (b) of Section 707
. . . .â€
name="_ftnref5" title="">[5]
DISCUSSION
“‘Our role in construing a statute is to
ascertain the Legislature’s intent so as to effectuate the purpose of the
law.’†(In re J. W. (2002) 29 Cal.4th 200, 209, quoting
984, 1000, and citing People v. Gardeley
(1996) 14 Cal.4th 605, 621.) In
determining that intent, we first examine the words of the statute, applying
‘“their usual, ordinary, and common sense meaning based upon the language
. . . used and the evident purpose for which the statute was
adopted.’†(People v. Granderson (1998) 67 Cal.App.4th 703, 707, quoting
accord, People v. Birkett (1999) 21
Cal.4th 226, 231.) ‘“If there is no
ambiguity in the language of the statute, “then the Legislature is presumed to
have meant what it said, and the plain meaning of the language governs.†[Citation.]
“Where the statute is clear, courts will not ‘interpret away clear
language in favor of an ambiguity that does not exist.’ [Citation.]’â€
[Citation.]†(
145, 151.)
Applying
these principles to section 733, subdivision (c), the statute at hand, we find the phrase “the
most recent offense alleged in any petition†is that offense which occurred later in time
regardless of when the petition was filed and adjudicated. In this case, the non-section
707, subdivision (b) offense
is the most recent offense because it occurred on December 23, 2010, while the section
707 subdivision (b) eligible offense occurred on September 9, 2010. Our holding is consistent with the
language, the intent of the applicable statute, and with existing case law
interpreting section 733, subdivision (c).
The People
contend “most recent†modifies the word “petition†rather than the word
“offense.†Under the People’s
interpretation, the prosecution would be permitted to reach back into the
minor’s history to allege any section 707, subdivision (b) offense not barred
by the statute of limitations, thereby making the minor eligible for DJJ
commitment. The “‘usual, ordinary, and
common sense meaning’†of the language does not lend itself to such an
interpretation. (People v. Granderson, supra, 67 Cal.App.4th at p. 707.)
The
People direct our attention to the legislative history of the statute which was
enacted in order to implement the Budget Act of 2007. Although we find no ambiguity in the statutory language of
section 733, subdivision (c), and therefore no reason to consult
the legislative history, the legislative history actually supports our
conclusion.
The purpose of
section 733, subdivision (c), is to reduce the number of youth offenders housed
in the DJJ. (In re N.D. (2008) 167 Cal.App.4th 885, 891–892.) The Legislature chose to do this by targeting
currently violent or serious juvenile offenders to be sent to the DJJ. (
Cal.App.4th 1455, 1468 (V.C.),
disapproved on other grounds in In re
Greg F. (2012) 55 Cal.4th 393 (Greg
F.).) The Legislature could
have written the statute to apply to all
violent or serious juvenile offenders but did not, because the statute included
a limitation. The Legislature chose to
consider only the “most recent offense†to identify currently violent or serious juvenile offenders. Alleging any section 707, subdivision (b)
eligible offense in the most recent section 602 petition, regardless of when it
was committed, would not further the legislative intent of sending currently
violent or serious offenders to DJJ.
There
is no case law directly on point with this particular factual scenario where in
order to secure DJJ commitment, the most recent filed and sustained section 602
petition, alleged an offense that was not the minor’s most recent offense. But, we find strong support for our view of the
statute in existing case law interpreting other
procedural actions involving section 733, subdivision (c).
In
to be an abuse of discretion to permit dismissal of a section 602 petition already
adjudicated by plea bargain, to allow the prosecution to instead pursue a
probation violation based on the same conduct to secure a DJJ commitment. (V.C.,
supra, at pp. 1459, 1469.) The Third
Appellate District succinctly summarized the issue pertinent to our discussion
as follows: “The language of section 733(c) allows
commitment to DJF only when ‘the most recent offense alleged in any
petition and admitted or found to be true by the court’ (italics added) is an
eligible offense. The statute does not
focus on the overall or entire delinquent history of the minor or on whether
the minor may be generally considered a serious, violent offender. The language looks to the minor’s ‘most
recent offense.’ The Legislature has
specifically determined it is the minor’s most recent offense that determines
the minor’s eligibility for DJF commitment.â€
(Id. at p. 1468.)
In
supra, 55 Cal.4th 393 the California
Supreme Court discussed “the interplay†between section 733, subdivision (c),
and section 782. Greg F. held dismissal of a petition for the purpose of allowing a
DJJ commitment on a minor’s previously-sustained section 602 petition is
appropriate under section 782 so long as the juvenile court finds that the
dismissal is required by the interests of justice and the welfare of the
minor. (Greg F., supra, at p. 402.)
The Court disapproved the V.C. court’s holding that section 733,
subdivision (c), must always override the juvenile court’s ability to dismiss a
delinquency petition under section 782.
(Greg F., supra, at p.
415.) In its analysis of section 733,
subdivision (c), the Court mirrored the reasoning of V.C. and stated that a DJJ commitment “must be based on a
recent violent offense or sex crime adjudicated in a delinquency petition. It cannot be ordered based on a past offense
in the ward’s juvenile record if the ward’s most recent offense does not
qualify.†(Greg F., supra, at p. 404.)
The
People argue that Greg F. “signaled
its agreement that it is the timing of the petition that matters, rather than
the date of the underlying offense†and that same reasoning is applicable in
this case. First, Greg F. involved the juvenile court’s authority to dismiss a
section 602 petition to “‘reach back’†to the allegations of an earlier
sustained petition. (
402–403.) It did not discuss reaching
back in the minor’s history for an unfiled DJJ-eligible offense to secure
commitment to DJJ. Second, the People’s
assertion is based on dicta in Greg F.
which discusses the potential for gamesmanship in the context of multicount
petitions. (Greg F., supra, at p. 412.) The court stated that “focusing on the most
recent petition, and not the most recent offense described in a multicount
petition, would appear to avoid absurd consequences and remain consistent with
the Legislature’s intent to reserve DJF commitments for specific recent
offenses.†(Ibid., fn. 3.)
With
respect to the further proceedings that will occur upon remand, we express no
opinion as to the applicability of section 782, which describes the juvenile
court’s discretion to dismiss delinquency petitions “if the court finds that
the interests of justice and the welfare of the minor require such
dismissal.†(§ 782; see
DISPOSITION
The December 5, 2011,
order committing appellant to DJJ is hereby vacated. We remand the matter for proper disposition.
FERNS, J.
name="_ftnref6" title="">*
We concur:
BOREN, P. J.
CHAVEZ, J.
of July 1, 2005, the correctional agency formerly known as the Department of
the Youth Authority (or California Youth Authority) became known as the
Department of Corrections and Rehabilitation, Division of Juvenile Facilities
(DJF). The DJF is part of the DJJ. (Gov. Code, §§ 12838, subd. (a), 12838.3, 12838.5;
Pen. Code, § 6001; Welf. & Inst. Code, § 1710, subd. (a).) Statutes that formerly referred to the
Department of the Youth Authority, such as Welfare and Institutions Code
section 733, now refer to the DJF.
However, the parties to this appeal, the trial court, other cases, and
certain of the California Rules of Court, refer to the DJF as the DJJ. (See, e.g., In re D.J. (2010) 185 Cal.App.4th 278; Cal. Rules of Court, rule
5.805.) In this opinion, we likewise
refer to the DJF as the DJJ.
further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
