Opinion
A163145
08-20-2021
J.W., Petitioner, v. THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, Respondent THE PEOPLE, Real Party in Interest.
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. JW196215
SANCHEZ, J.
BY THE COURT:
Petitioner J.W., a ward of the juvenile court, seeks a writ of mandate or habeas corpus directing respondent superior court to vacate his commitment to the Department of Juvenile Justice (DJJ). Petitioner claims he was erroneously committed to DJJ because his “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 or subdivision (c) of Section 290.008 of the Penal Code.” (Welf. & Inst. Code, § 733, subd. (c).) The People concede the correctness of petitioner's claim. We will therefore grant the unopposed petition and issue a peremptory writ of mandate in the first instance, as we previously informed the parties was possible. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 (Palma).
All statutory citations are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
On September 27, 2019, the San Francisco District Attorney filed a section 602 petition charging petitioner with murder (Pen. Code, § 187, subd. (a); Count I), attempted murder (Pen. Code §§ 187, subd. (a), 664; Count II), assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b); Count III), carrying a loaded firearm (Pen. Code, § 25850, subd. (a); Counts IV and V), carrying a concealed firearm in a vehicle (Pen. Code, § 25400, subd. (a)(1); Count VI), and possession of a firearm by a minor (Pen. Code, § 29610; Counts VII and VIII). The offenses alleged in Counts I through VII were alleged to have been committed on September 8, 2019. The offense alleged in Count VIII, however, was alleged to have been committed on September 25, 2019.
After a contested jurisdictional hearing, on January 29, 2021, respondent court found true the allegations in the section 602 petition.
At disposition on April 22, 2021, petitioner was committed to DJJ for a maximum term of 83 years and four months.
“DJJ is also known as the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF). DJJ/DJF is the current name of the former California Youth Authority.” (In re N.C. (2019) 39 Cal.App.5th 81, 86, fn. 3.)
On April 30, 2021, petitioner filed a notice of appeal from the dispositional order. That appeal is pending in this court as case No. A162620.
The instant petition was filed on July 30, 2021. On August 5, 2021, we requested preliminary opposition from the People as real party in interest.
In our request for opposition, we gave Palma notice, informing the parties that we were considering the issuance of a peremptory writ in the first instance.
The People filed their preliminary opposition on August 11, stating that they “concur[] with Petitioner that the commitment to DJJ was in error.” According to the People, “[b]ecause the most recent offense on the section 602 petition against Petitioner is not eligible for commitment to the DJJ, this Court should direct the juvenile court to vacate its commitment order and conduct a new disposition hearing.” Since the People agree that petitioner is entitled to relief, the petition is unopposed.
On August 12, petitioner filed a reply asking us to issue a peremptory writ of mandate directing respondent to vacate its April 22, 2021 order committing him to DJJ and to conduct a new dispositional hearing.
On August 13, 2021, we temporarily stayed the April 22, 2021 order pending consideration of the petition.
DISCUSSION
Section 733 prohibits committing a juvenile ward to DJJ if the ward meets any of the conditions described in that section. Subdivision (c) of that section forbids commitment to DJJ if “[t]he 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 or subdivision (c) of Section 290.008 of the Penal Code.” (Italics added.) This limitation requires that a DJJ commitment be based on the most recent violent offense or sex offense. (See In re Greg F. (2012) 55 Cal.4th 393, 404 (Greg F.) [“[A] DJF 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.”].)
Here, petitioner's most recent offense, the violation of Penal Code section 29610 alleged in Count VIII, is not described in either subdivision (b) of section 707 or subdivision (c) of Penal Code section 290.008. The language of section 733, subdivision (c) “refers to the last offense that was adjudicated to have been committed by the minor. A minor can be committed to DJF only if this particular offense is listed in section 707(b) or Penal Code section 290.008(c).” (In re D.B. (2014) 58 Cal.4th 941, 947 (D.B.).) Thus, respondent's order committing petitioner to DJJ violates the plain language of section 733.
As the Supreme Court has observed, “focusing on the most recently committed offense could lead to arbitrary and potentially absurd results in a multicount case. A minor who commits a string of violent acts would be immunized from a DJF commitment if the crime spree happened to end with a nonqualifying offense.” (Greg F., supra, 55 Cal.4th at p. 412.) Nevertheless, the Supreme Court subsequently found that while “[t]hese potential consequences are certainly troubling..., they are not so absurd that we must override the plain meaning of the statutory language.” (D.B., supra, 58 Cal.4th at p. 948.) Thus, we are constrained by both the statutory language and Supreme Court precedent to grant petitioner the relief he seeks.
We also observe that D.B. was decided more than five years before petitioner committed the charged offenses, “giving prosecutors ample notice of the requirements of... section 733, subdivision (c). Had they wanted to avoid the result that statute requires, they could have easily exercised their discretion at the charging stage. They did not do so.” (In re B.J. (2020) 49 Cal.App.5th 646, 652 (B.J.).)
We express no view on whether such an exercise of prosecutorial discretion would be appropriate at the new dispositional hearing we will order respondent to conduct.
“Generally, [the accelerated Palma] procedure should be adopted only when petitioner's entitlement to relief is so obvious that no purpose could reasonably be served by plenary consideration of the issue-for example, when such entitlement is conceded or when there has been clear error under well-settled principles of law and undisputed facts.” (Ng v. Superior Court (1992) 4 Cal.4th 29, 35.) Here, entitlement to relief is conceded, the relevant facts are undisputed, and the statutory language, as interpreted by our Supreme Court, is plain. “It prohibits a [DJJ] commitment unless the most recent offense alleged in any petition and admitted or found true is listed in section 707(b) or Penal Code section 290.008(c).” (D.B., supra, 58 Cal.4th at p. 948.) Because petitioner's most recent offense is one not described in either subdivision (b) of section 707 or subdivision (c) of Penal Code section 290.008, respondent court erred as a matter of law in committing him to DJJ. Thus, respondent's order of April 22, 2021, committing petitioner to DJJ must be vacated, and this matter must be remanded for a new dispositional hearing. (B.J., supra, 49 Cal.App.5th at pp. 652, 653.)
We informed the parties that we might proceed by issuing a peremptory writ in the first instance, and we received preliminary opposition from the People. They conceded that petitioner is entitled to relief. “ ‘Having complied with the procedural prerequisites, we are authorized to issue a peremptory writ in the first instance.' ” (Johnny W. v. Superior Court (2017) 9 Cal.App.5th 559, 568.)
DISPOSITION
The unopposed petition for writ of mandate is granted. Let a peremptory writ of mandate issue directing respondent superior court in In re J.W., San Francisco Super. Ct. No. JW196215 to (1) vacate its order of April 22, 2021, committing petitioner to DJJ and (2) conduct a new dispositional hearing. This decision shall be final as to this court upon filing. (Cal. Rules of Court, rule 8.490(b)(2)(A).) The previously issued stay shall dissolve upon finality of this opinion.
We concur. HUMES, P.J. MARGULIES, J.