Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. JW104015, Peter A. Warmerdam, Juvenile Court Referee.
Steven A. Torres, 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, Janis Shank McLean and Tia M. Coronado, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Levy, J.
INTRODUCTION AND FACTS
Appellant Jorge G. has five prior sustained juvenile wardship petitions. (Welf. & Inst. Code, § 602.) The current juvenile wardship petition was filed on August 1, 2007, while appellant was placed at the Kern Crossroads Facility. It alleged that appellant committed a misdemeanor battery in violation of Penal Code section 243, subdivision (a). Also, it alleged that previous dispositions arising from prior sustained petitions had not been effective and it gave notice that the People intended to move for an increase of the maximum term of confinement by aggregating the terms of all previously sustained petitions. Appellant admitted the allegations in the current petition and the court found them to be true. On August 28, 2007, the juvenile court committed appellant to the Department of Corrections and Rehabilitation, Juvenile Justice (YA), with a maximum term of confinement of three years and 10 months.
Unless otherwise specified, all statutory references are to the Welfare and Institutions Code.
Appellant argues that he is entitled to a new dispositional hearing because recent changes to sections 731 and 733 apply retroactively to his case. He also argues that recently enacted section 731.1 violates the constitutional separation of powers. Neither contention is persuasive; we will affirm.
It is unnecessary to set forth the factual details of appellant’s criminal offenses to resolve the issues presented on appeal. They present questions of law that are reviewed de novo. (Hermosa Beach Stop Oil Coalition v. City of Hermosa Beach (2001) 86 Cal.App.4th 534, 548-549.)
DISCUSSION
I. 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 artificial 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.)
II. Section 731.1 does not violate the constitutional separation of powers.
Next, appellant contends that section 731.1 violates the separation of powers because it gives “the probation department initial veto power of the court’s decision making ability. That is, even if the juvenile court wanted to recall the minor’s commitment because it was no longer proper, it could not do so absent the probation officer first making that ‘recommendation.’” Appellant asserts that probation officers are not members of the judicial branch and, therefore, section 731.1 violates the separation of powers. We are not convinced.
As will be explained, existing authority has established that the juvenile court does not possess jurisdiction to regulate a ward’s rehabilitation after the ward has been committed to the YA; this authority properly belongs to the executive branch. (In re Owen E. (1979) 23 Cal.3d 398, 404-405 (Owen); see also In re Allen N. (2000) 84 Cal.App.4th 513, 515-516 (Allen).) By conditioning the availability of the ameliorative process set forth in section 731.1 upon the recommendation of the probation officer, the Legislature recognized and applied the accepted principle that it is the Division of Juvenile Justice who regulates and determines questions of rehabilitation. As previously explained in part I, ante, wards committed to YA prior to September 1, 2007, do not have a constitutional right to release solely because of the changes to section 731 and 733. Recall of a commitment pursuant to section 731.1 properly is viewed as part of rehabilitation and, as such, is within the reasonable exercise of discretion on the part of YA, acting through the chief probation officer of the county, in the first instance.
The juvenile court has a limited supervisory role after a ward is committed to YA. Once a person is judged to be a ward of the court, the court may retain jurisdiction over him or her until he or she attains the age of 21 or 25 depending on the nature of the offense. (In re Antoine D. (2006) 137 Cal.App.4th 1314, 1320 (Antoine).) Yet, “[n]otwithstanding the juvenile court’s continuing jurisdiction over a ward, ‘[c]ommitment to the Youth Authority in particular, brings about a drastic change in the status of the ward which not only has penal overtones, including institutional confinement with adult offenders, but also removes the ward from the direct supervision of the juvenile court.’ [Citation.]” (Allen, supra, 84 Cal.App.4th at p. 515 [court may not impose probation conditions after committing ward to YA].) The juvenile court is not a secondary body governing the minor’s rehabilitation; it is YA that determines questions of rehabilitation. (Ibid.; Owen, supra, 23 Cal.3d at p. 404-405.)
Section 731.1 is one of three sections governing recall of a YA commitment. Sections 778 and 779 authorize a juvenile court to change, modify or set aside a prior order over a ward based on changed circumstances or new evidence. This authority includes setting aside or modifying an order committing the ward to YA where it appears the YA has failed to comply with the law or abused its discretion in dealing with the ward. Recall of a commitment may also be proper upon a showing that the ward is unlikely to benefit from the YA’s education and treatment. (Antoine, supra, 137 Cal.App.4th at p. 1323.) Section 778 permits a parent or any other person having an interest in the ward to file a verified petition setting forth the new circumstance or new evidence that is alleged to require change of the juvenile court’s order or termination of jurisdiction. Section 779 permits the juvenile court to change, modify or set aside the order of commitment on its own motion. However, “[s]ection 779 does not authorize judicial intervention into the routine parole function of [YA] ….” (Owen, supra, 23 Cal.3d at p. 406.)
In Owen, our Supreme Court rejected appellant’s contention that “the juvenile court is vested with final authority to determine his rehabilitative needs.” (Owen, supra, 23 Cal.3d at p. 402.) It concluded that YA possesses exclusive power to determine questions of a ward’s rehabilitation, within reason. Section 779 does not authorize the juvenile court to act essentially in the role of a YA parole revocation hearing officer. (Id. at p. 404.) The high court explained:
“While different statutes -- even different codes -- regulate the division of responsibility between the concerned administrative agency and court, it appears to be as unreasonable to assume the Legislature intended that both the juvenile court and CYA are to regulate juvenile rehabilitation as it is to assume that both the superior court and Adult Authority are to regulate criminal rehabilitation.” (Owen, supra, 23 Cal.3d at p. 405.)
Therefore,
“… section 779 does not constitute authority for a juvenile court to set aside an order committing a ward to CYA merely because the court’s view of the rehabilitative progress and continuing needs of the ward differ from CYA determinations on such matters arrived at in accordance with law. The critical question is thus whether CYA acted within the discretion conferred upon it in rejecting Owen’s application for parole. If so, there is no basis for judicial intervention by the juvenile court.” (Owen, supra, 23 Cal.3d at p. 405.)
In this case, appellant’s argument rests upon the premise that was rejected in Owen, i.e., that the juvenile court possesses the initial authority to regulate a ward’s rehabilitation following YA commitment. As demonstrated above, it has been determined that the juvenile court does not possess such initial authority. Once a ward has been committed to YA, it is the executive branch of government that regulates and determines questions surrounding a ward’s rehabilitative progress, not the judicial branch of government. Therefore, following and applying the reasoning of Owen, we conclude that section 731.1 does not violate the separation of powers. Rather, it correctly recognizes the limited role of the judicial branch after a YA commitment. Thus, appellant’s constitutional objection to section 731.1 fails.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Wiseman, Acting P.J., Gomes, J.