Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J211265, Douglas N. Gericke and Winifred Brewer, Judges.
Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Lauren E. Eskenazi, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Kevin Vienna, Supervising Deputy Attorney General, Gary W. Schons, Senior Assistant Attorney General, Douglas P. Danzig, Lise S. Jacobson and Marissa A. Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut, J.
Armando E. (the minor) appeals from a judgment of wardship and commitment to the Department of Juvenile Justice (DJJ) following his admission of a count alleging evasion of a peace officer. (Veh. Code, § 2800.2, subd. (a).) The minor claims the court failed to properly exercise its discretion in determining whether the admitted offense was a felony or misdemeanor, and, by way of a supplemental brief, that his commitment to the California Department of Corrections and Rehabilitation (CDCR), Division of Juvenile Facilities was unauthorized. Although respondent conceded that the juvenile court had failed to determine whether the offense was a felony or misdemeanor, the record shows otherwise. We affirm the judgment in its entirety.
1. Background
On November 7, 2006, Officer Kershner of the Colton Police Department responded to a call regarding a possible fight. He responded to the location where D. Mendoza reported the minor had threatened him with a 13-inch, single-blade knife. The incident occurred when the minor’s mother requested that Mendoza remove the dog, which the minor had brought home. The minor objected to removal of the dog and threatened Mendoza with the knife. A delinquency petition was filed as a result of this incident (Welf. & Inst. Code, § 602), alleging that the minor unlawfully exhibited a deadly weapon (Pen. Code, § 417, subd. (a)(1)), an offense that would be a misdemeanor if committed by an adult. The minor admitted the petition, was declared a ward and placed on probation.
On January 22, 2007, the minor’s mother reported the minor had left his home overnight without permission, in violation of probation conditions requiring him to be home every night by curfew. The probation officer also reported to the court the minor had failed to attend school regularly. A supplemental petition alleging the violation of curfew was filed. When the minor failed to appear for the hearing on the violation of probation, an arrest warrant was issued.
The minor was arrested on March 16, 2007, after police officers responded to a report from a gas station that a Honda automobile had been stolen. He was soon found to be driving the stolen vehicle by officers checking the area, but when they attempted to initiate a stop, a high-speed chase ensued through San Bernardino, along the Interstate-215 freeway at speeds exceeding 100 miles per hour. The minor was finally taken into custody when he crashed the vehicle into a light pole in the City of Hesperia.
On March 20, 2007, a subsequent delinquency petition was filed alleging that the minor had taken or driven an automobile without permission of the owner (Veh. Code, §10851, subd. (a), count 1), a felony, and that he had evaded a peace officer (Veh.Code, § 2800.2, subd. (a), count 2), a felony. On April 3, 2007, the minor admitted the count alleging the evasion of police officers in return for dismissal of the balance of the petition, as well as the dismissal of the violation of probation.
On June 1, 2007, following a contested disposition hearing, the minor was committed to the DJJ for three years two months. In making the commitment, the juvenile court stated:
The minutes of the disposition hearing state the minor was committed to the Youth Authority; however, in orally pronouncing judgment, the court referred to a DJJ report and commitment.
“As to his maximum confinement time, the Court’s aware of its discretion. His gross maximum confinement time is three years, two months. The Court feels that in view of this minor’s well documented resistance to prior rehabilitative efforts, DJJ should have as much time as available in an attempt to help him rehabilitate. So the Court sets the maximum confinement time at three years, two months. He has credit for time served -- [¶] . . . [¶] . . . -- 125 predisposition credits. And that will be awarded. The current offense is not a 707(b) offense. His prior offenses are not 707(b) offenses. The Court finds a motor vehicle was involved or incidental to the commission of the offense. It’s a felony offense and will so remain.”
On June 11, 2007, the minor filed a notice of appeal.
2. Discussion
A. The Trial Court Properly Declared the Offense to Be a Felony.
The minor was initially charged in the subsequent petition with two offenses which are “wobblers,” meaning that such offenses are punishable alternatively either as a misdemeanor or a felony. Where a minor is found to have committed such an offense, the juvenile court is required to declare whether the offense is a misdemeanor or felony. (Welf. & Inst. Code, § 702.) Relying upon the California Supreme Court decision of In re Manzy W. (1997) 14 Cal.4th 1199, the minor asserts the juvenile court failed in its duty because “the juvenile court never stated on the record that it had discretion to designate the offense a misdemeanor; . . .” The minor is mistaken in both his interpretation of the record as well as his interpretation of the court’s obligations under Manzy W.
In Manzy W., the Supreme Court made clear that the statutory obligation to declare the minor’s offense to be a felony or misdemeanor is a mandatory duty, and explained that the obligation is not discharged by the fact the petition alleges an offense to be a misdemeanor. (In re Manzy W., supra, 14 Cal.4th at pp. 1207, 1208; see also, In re Kenneth H. (1983) 33 Cal.3d 616, 619-620.) In that case, the juvenile court failed to declare whether the offense was either a felony or misdemeanor.
The court went on to hold that the failure to make that mandatory express declaration requires remand for strict compliance with Welfare and Institutions Code section 702. (In re Manzy W., supra, 14 Cal.4th at p. 1204.) In explaining its holding, the court noted that the purpose of the statute is to ensure that the juvenile court is aware of, and actually exercises, its discretion under Welfare and Institutions Code section 702. (In re Manzy W., supra, at p. 1207.)
Here the court declared that the offense was “felony offense and will so remain,” satisfying its mandatory duty. The minor acknowledges that the juvenile court did declare the offense to be a felony. However, the minor argues more is required, asserting the court’s statement was inadequate because the juvenile court did not “expressly declare on the record” that it had considered the issue of whether the offense should be deemed a misdemeanor or a felony. This assertion misinterprets the holding In re Manzy W, supra, 14 Cal.4th 1199 .
Manzy W. does not hold that a juvenile court must state on the record that it is aware of its discretion whenever it complies with Welfare and Institutions Code section 702. Instead, it explained that the purpose of the express declaration is to insure the court is aware of its discretion. (In re Manzy W., supra, 14 Cal.4th at p. 1207.) Even so, the juvenile court did state it was “aware of its discretion” in this case. Since the juvenile court stated in unambiguous terms that the offense was “a felony offense and will so remain,” it showed it was aware of its discretion and made the mandatory declaration. There was no error.
B. The Commitment Was Proper Where Legislative Changes to the Organizational Structure of CDCR Affect Placement, Not Penalty.
In a supplemental brief, the minor argues that amendments to the statutes governing commitments to the CDCR, which went into effect after his commitment, require remand for a new disposition hearing. He argues that the legislative amendments, providing that minors whose offenses are not violent or serious felonies (Welf. & Inst. Code, § 707(b) offenses) may not be committed to the CDCR (Welf. & Inst. Code, § 731), are ameliorative amendments, which should apply to any case that is not final. He wants his commitment to the DJJ vacated and seeks a new disposition hearing. We disagree.
An amendatory act imposing a lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment is not final. (In re Estrada (1965) 63 Cal.2d 740, 745.) We must construe the amendatory provisions of the Welfare and Institutions Code to determine if they lessen punishment in order to decide whether the minor is entitled to a new disposition. We begin with the general rule of statutory construction which requires us to presume the Legislature intended its acts to operate prospectively unless a contrary intention is expressed. (Id. at p. 746; see also People v. Floyd (2003) 31 Cal.4th 179, 184.) The exception to the rule requiring prospective application relates to amendatory statutes lessening punishment which become effective before the judgment becomes final. (In re Estrada, supra, at p. 744.)
The statute in question, Welfare and Institutions Code section 731, does not lessen penalty. The statutory provisions governing disposition, in effect at the time of the minor’s disposition, permitted the court to “order any of the types of treatment referred to in Sections 727 and 730,” or to, among other alternatives, “[c]ommit the ward to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities.” (Welf. & Inst. Code, § 731, subd. (a)(4).) If a minor was committed to the Department of the Youth Authority, he or she could not be held in physical confinement for a period of time in excess of the maximum period of imprisonment which could be imposed upon an adult convicted of the same offense or offenses. (Welf. & Inst. Code, § 731, subd. (b).) The amendatory provisions which went into effect September 1, 2007, did not change the maximum period of confinement for wards committed to local facilities or affect the amount of confinement time in DJJ (Welf. & Inst. Code, § 731, subd. (c)), so they are not ameliorative. Further, the legislative history reveals that lessening punishment was not the intent. (2007 Legis. Bill Hist. CA S.B. 82.) Nor does the language of the statute reflect an intent that it be applied retroactively. (In re Brandon G. (2008) 160 Cal.App.4th 1076, 1081.)
While it is true that after the effective date the juvenile court may not commit a non-707(b) ward to the DJJ, the Legislature expressed no intent to invalidate all commitments made to the Youth Authority prior to the effective date of the legislation. To the contrary, the Legislature added specific provisions permitting—but not requiring—the juvenile court to recall commitments for non-707(b) wards whose commitments to the DJJ predated the legislative changes. (Welf. & Inst. Code, § 731.1.) By providing that the county “may choose” to take some or all of the youthful offenders back into county care and custody, the recall is permissive, and discretionary, but not mandatory. (See Common Cause of California v. Board of Supervisors (1989) 49 Cal.3d 432, 443 [“may” is ordinarily construed as permissive].)
The minor’s argument that the legislative changes have an ameliorative or mitigating affect on his commitment relate to the fact that currently non-707(b) wards are not eligible for commitment to a state-operated facility. Respondent correctly observes that the amendments to Welfare and Institutions Code section 731 do not address the amount of time a minor must serve, and that Welfare and Institutions Code section 731.1 provides the mechanism for possible recalls. We agree with respondent. Additionally, two recently published decisions support our view. (In re Brandon G., supra, 160 Cal.App.4th at p. 1081; In re Carl N. (2008) 160 Cal.App.4th 423, 437-438.)
More significantly, a minor committed to DJJ may actually serve less time in confinement than a minor could serve in local placements. The actual time a minor is confined by DJJ is set out in the California Code of Regulations. (Cal. Code Regs., tit. 15, § 4945 et seq.) Under these regulations, the minor, whose offense is classified as a category seven ward based on his most recent petition, permits release after an interval of one year. (Cal. Code Regs., tit. 15, § 4946; see also, In re Ismael A. (1989) 207 Cal.App.3d 911, 915.) Local placements are not subject to the regulations permitting early release, so wards treated at the local level on probation, could serve out the entire maximum period of confinement prior to discharge from probation. The amendment limiting commitments to DJJ for minors whose most recent petition is not a 707(b) offense does not ameliorate punishment.
At oral argument, the minor urged us to adopt a policy favoring retroactive application of a non-ameliorative statutory amendment based on the notion that a commitment to DJJ is “qualitatively” different from local placement. Estrada does not so require. The Juvenile Court Law approves of punishment as a legitimate goal, consistent with the rehabilitative objectives of the law. (Welf. & Inst. Code, § 202, subd. (b); In re Ismael A., supra, 207 Cal.App.3d at p. 917.) Physical confinement is a type of treatment within the meaning of Welfare and Institutions Code section 730, whether the confinement is in a local facility or a state facility, and is statutorily authorized as either punishment or treatment (Welf. & Inst. Code, § 730), within the broad discretion of the juvenile court. A commitment to the DJJ is, therefore, not more punitive than a local program because no greater amount of confinement time is contemplated.
The minor relies on People v. Benefield (1977) 67 Cal.App.3d 51, a case involving a youth who was tried and convicted as an adult, but who became eligible for Youth Authority commitment by the enactment of a new statutory provision. (Welf. & Inst. Code, § 1731.5.) Under Welfare and Institutions Code section 1731.5 (as it then existed), an adult could be committed to the Youth Authority for any offense not carrying a sentence of death or imprisonment for life. If the crime was a non-707(b) offense, he or she would be eligible for release on parole after one year. (Cal. Code Regs., tit. 15, § 4956.) Furthermore, if the adult is committed to and paroled from the Youth Authority for a “wobbler,” the crime is deemed a misdemeanor for all purposes. (Pen. Code, § 17, subd. (c).) A new or amended statute permitting an adult to receive a commitment to the Youth Authority, like the defendant in Benefield received, is an ameliorative act which provides for lesser punishment.
However, juvenile offenders tried and committed under the Juvenile Court Law for the same crime prior to September 1, 2007, and those committed after the effective date still have the same maximum possible term applied to their commitments. The real difference between the two classes of juvenile committees is that after September 1, 2007, youths whose offenses involve non-serious, nonviolent crimes must be committed to local facilities (juvenile home, ranch, camp, or forestry camp), rather than state-operated facilities. (Welf. & Inst. Code, § 730.)
The Legislature has simply made changes affecting placement, not punishment. Since it has not provided for less time in custody, there is no basis for retroactive application of the law. Moreover, because there is a mechanism for transferring the minor from DJJ to a local commitment if it is deemed more appropriate, reversal is not necessary.
3. Disposition
The judgment is affirmed in its entirety.
We concur: McKinster Acting P. J. Miller J.