Opinion
NOT TO BE PUBLISHED.
APPEAL from a judgment of the Superior Court of Fresno County No. 04CEJ600419, Martin Suits, Commissioner.
Thea Greenhalgh, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Clifford E. Zall and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J.; Levy, J.; and Gomes, J.
INTRODUCTION AND FACTS
On March 29, 2006, appellant Joaquin D. admitted an allegation contained in a Welfare and Institutions Code section 602 petition alleging that he feloniously possessed a dirk or dagger in violation of Penal Code section 12020, subdivision (a)(4). The juvenile court ordered him committed to the custody of the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (YA), with a maximum term of confinement of four years and two months. On April 6, 2007, this court reversed the dispositional order and remanded the case for the limited purpose of permitting the juvenile court to exercise its discretion in determining whether the offense was a felony or misdemeanor and to consider the individualized facts and circumstances of the case in selecting the appropriate maximum term of confinement. On July 26, 2007, the juvenile court declared the offense to be a felony and recommitted appellant to YA for the previously imposed maximum term of four years and two months. In this appeal, appellant argues that he is entitled to a new dispositional hearing because recent amendments to sections 731 and 733 apply retroactively to his case. We disagree and will affirm.
Unless otherwise specified, all statutory references are to the Welfare and Institutions Code.
Appellant correctly acknowledges that the sole issue raised in this appeal is a question of statutory interpretation that presents a question of law and is reviewed de novo (Hermosa Beach Stop Oil Coalition v. City of Hermosa Beach (2001) 86 Cal.App.4th 534, 548). Therefore, it is unnecessary to set forth the factual circumstances of the underlying criminal offense.
DISCUSSION
Recent changes to sections 731 and 733 are not retroactive; appellant is not entitled to a new dispositional hearing.
Appellant urges this court to retroactively apply recently enacted changes to sections 731 and 733 restricting the types of minors who are eligible for YA commitment to his case. We decline to do so because the Legislature clearly intended these changes to apply prospectively to cases occurring on and after September 1, 2007. Our determination that the changes to sections 731 and 733 do not apply retroactively is consistent with the reasoning and result reached by the Second District Court of Appeal in In re Brandon G. (2008) 160 Cal.App.4th 1076 (Brandon) and by the Fourth District Court of Appeal, Division 1, in In re Carl N. (2008) 160 Cal.App.4th 423 (Carl).
In 2007, the Legislature passed and the Governor signed into law legislation changing the eligibility criteria for committing wards to YA. (Stats. 2007, ch.175 (Sen. Bill No. 81), §§ 19, 22, eff. Aug. 24, 2007; Stats.2007, ch. 257 (Assem. Bill No. 191), § 2, eff. Sept. 29, 2007.) Sections 731 and 733 were revised to remove a YA commitment from the list of placement options unless the minor’s latest petition was either for an offense listed in section 707, subdivision (b), or for a specified sexual offense set forth in Penal Code section 290, subdivision (d)(3). (§§ 731, subd. (a)(4); 733, subd. (c).) Section 733 was repealed and reenacted; subdivision (c) of the new section 733 provides, “This subdivision shall be effective on and after September 1, 2007.”
Prior to enactment of the 2007 changes to sections 731 and 733, juvenile courts had broad discretion to commit a minor to the YA. The only outright prohibitions against such a commitment were if the minor was under 11 years of age or if the minor was suffering from a life-threatening infectious or contagious disease.
Penal Code section 290, subdivision (d)(3), has been reenacted as Penal Code section 290.008, subdivision (c).
Subdivision (a) of section 731 now provides, in relevant part:
“If a minor is adjudged a ward of the court on the ground that he or she is a person described by Section 602, the court may order any of the types of treatment referred to in Sections 727 and 730 and, in addition, may do any of the following: [¶] …
(4) Commit the ward to [YA], 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.”
Section 733 now provides, in relevant part:
“A ward of the juvenile court who meets any condition described below shall not be committed to the [YA]: [¶] …
(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, unless the offense is a sex offense set forth in paragraph (3) of subdivision (d) of Section 290 of the Penal Code. This subdivision shall be effective on and after September 1, 2007.”
The Legislature also added section 731.1 to create a two-step process for addressing YA commitments such as the one appellant is challenging, i.e., commitments occurring before September 1, 2007, as a result of an offense that is not listed in subdivision (b) of section 707 and is not a sex offense set forth in prior Penal Code section 290, subdivision (d).
“[S]ection 731.1 was enacted as part of the same legislation that became operative on September 1, 2007, and amended section 731, repealed former section 733, and added the current version of section 733.” (Carl, supra, 160 Cal.App.4th at p. 437.) Section 731.1 was amended shortly after its enactment and the current version of section 731.1 became effective on September 29, 2007. (Stats.2007, ch. 257 (Assem. Bill No. 191), § 3, eff. Sept. 29, 2007.)
Section 731.1 now provides, in relevant part:
“Notwithstanding any other law, the court committing a ward to [YA], upon the recommendation of the chief probation officer of the county, may recall that commitment in the case of any ward whose commitment offense was not an offense listed in subdivision (b) of Section 707, unless the offense was a sex offense set forth in paragraph (3) of subdivision (d) of Section 290 of the Penal Code, and who remains confined in an institution operated by the division on or after September 1, 2007.…”
When ascertaining whether a statute should be applied retroactively, legislative intent is the paramount consideration. (People v. Nasalga (1996) 12 Cal.4th 784, 792 (Nasalga).) If the legislative intent is not clear, a law lessening the punishment for a given crime generally is applied to cases that are not yet final. (In re Estrada (1965) 63 Cal.2d 740, 748.) This rule of lenity “of course, is not implicated where the Legislature clearly signals its intent to make the amendment prospective, by the inclusion of either an express saving clause or its equivalent.” (Nasalga, supra, 12 Cal.4th at p. 793.)
In this instance the legislative intent is clear. The last sentence of subdivision (c) of section 733 says that the section is to be applied “on and after September 1, 2007. [Emphasis added.]” This specification can only mean that the provision is not applicable to cases occurring before that date. By using the phrase “on and after” the Legislature clearly indicated that it intends for the amendment to be applied prospectively. Although section 731 does not contain a specific operative date in the statute itself, the relevant provision of section 731 refers to section 733. Each statute cannot be considered in isolation but must be construed in harmony to give force and effect to each section, to the extent possible. (Woods v. Young (1991) 53 Cal.3d 315, 323.)
The Legislature’s enactment of section 731.1 further reinforces our conclusion that it intended prospective application of the changes to sections 731 and 733. Section 731.1 confers joint discretion upon the probation department and the court to recall a ward from YA and describes a procedure for doing so in appropriate cases. Thus, the Legislature created a discretionary process for release of appropriate minors who are currently committed to YA for offenses that would not now qualify for a YA placement. The availability of this process cures any perceived injustice resulting from the enactment of restrictive rules governing eligibility for a YA commitment that do not apply retroactively.
In sum, reading the plain language of sections 731, 731.1 and 733 together we conclude that the Legislature intended that the changes apply prospectively to cases occurring on and after September 1, 2007. Therefore, appellant is not entitled to a new dispositional hearing. (Brandon, supra, 160 Cal.App.4th at p. 1080; Carl, supra, 160 Cal.App.4th at p. 435.)
DISPOSITION
The judgment is affirmed.