Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JDSQ1696103
SCOTLAND , P. J.
Michael C. (the minor) appeals from a juvenile court order committing him to the Division of Juvenile Justice (DJJ) of the Department of Corrections and Rehabilitation. He contends the commitment must be vacated because it is unauthorized by statute. The People agree the commitment must be vacated, but for reasons different than that asserted by the minor. Disagreeing with both parties, we shall affirm the order.
PROCEDURAL HISTORY
In July 2005, the minor was placed at Teen Triumph, a group home, after admitting he had assaulted a person with intent to commit rape and made criminal threats.
In October 2007, the minor was committed to the DJJ (Welf. & Inst. Code, § 777) after admitting he was “terminated from Teen Triumph for failure to follow program rules.”
DISCUSSION
Operative September 1, 2007, Welfare and Institutions Code section 731 provided: “(a) 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 the [DJJ], 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.” (Further section references are to the Welfare and Institutions Code unless otherwise specified.)
Section 733, also operative on September 1, 2007, provides: “A ward of the juvenile court who meets any condition described below shall not be committed to [DJJ]: [¶] (a) The ward is under 11 years of age. [¶] (b) The ward is suffering from any contagious, infectious, or other disease that would probably endanger the lives or health of the other inmates of any facility. [¶] (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.”
The minor acknowledges that assault with intent to commit rape, a violation of Penal Code section 220, is an offense listed in section 707, subdivision (b). Nonetheless, he claims that he is ineligible for DJJ commitment because (1) section 733, subdivision (c) requires his most recent offense to be a section 707, subdivision (b) offense, and the assault to commit rape was not his most recent offense. Instead, as the minor sees it, his most recent offense was being terminated from the Teen Triumph group home. This argument misreads the statutes.
“In construing a statute, our role is to ascertain the Legislature’s intent so as to effectuate the purpose of the law. [Citation.] In determining intent, we must look first to the words of the statute because they are the most reliable indicator of legislative intent. [Citation.] If the statutory language is clear and unambiguous, the plain meaning of the statute governs.” (People v. Lopez (2003) 31 Cal.4th 1051, 1056.)
Section 733 is unambiguous. It refers to two lists of “offenses,” those in section 707, subdivision (b) and those in Penal Code section 290, subdivision (d) (now Penal Code section 290.008). Every offense set forth in these sections, either by statutory reference or by description, is a criminal offense. Consequently, as used in this section, “offense” means “criminal offense.”
Because the minor’s termination from the Teen Triumph group home for failing to follow program rules was not based on the commission of a crime, the assault with intent to commit rape was his most recent criminal offense.
The People take two positions in conceding that the minor’s DJJ commitment must be vacated. Neither has merit.
The People first assert “[b]ecause [the minor] did not commit an offense enumerated in section 707, subdivision (b), and the October 2007 disposition occurred after the September 2007 effective date of amended section 731, the juvenile court [lacked] authority to commit [the minor] to the DJJ.” However, assault to commit rape is a section 707, subdivision (b) offense because, among the descriptions of offenses listed in Section 707, subdivision (b) is paragraph 16, which states: “Any offense described in Section 1203.09 of the Penal Code,” which includes “Assault with intent to commit rape or sodomy, in violation of Section 220.” (Pen. Code, § 1203.09, subd. (b)(7).) Consequently, a violation of Penal Code 220 is an offense described in subdivision (b) of section 707.
The People next assert: “It is true that [the minor’s] assault with intent to commit forcible rape (Pen. Code, § 220/261, subd. (a)(2)) falls within Penal Code section 290, subdivision (d)(3) (now Pen. Code, § 290.008). However, the clause in section 733 that refers to Penal Code section 290 only applies in cases in which the DJJ commitment occurred prior to the September 2007 amendments. Section 731.1, governing recall of pre-September 2007 commitments, makes this clear. Section 731.1 provides, in pertinent part: [¶] [‘]Notwithstanding any other law, the court committing a ward to [DJJ], 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 [DJJ] on or after September 1, 2007.[’] [¶] Thus, the exception for Penal Code section 290, subdivision (d)(3) offenses only applies in cases where the minor was committed to DJJ prior to September 2007.”
The People’s argument misunderstands sections 731.1 and 733, both of which were operative at the time of the minor’s commitment to DJJ. Section 733 prohibits commitment to DJJ of wards whose latest offense is not a section 707, subdivision (b). But this prohibition has an exception if the most recent offense is a Penal Code section 290, subdivision (d)(3) offense. In other words, even if the most recent offense is not a section 707, subdivision (b) offense but is a Penal Code section 290, subdivision (d)(3) offense, the court may commit the minor to the DJJ.
Section 731.1 has nothing to do with section 733. Section 731.1 permits the court, under specified conditions, to recall a DJJ commitment made prior to September 1, 2007, if the offense was not a section 707, subdivision (b) offense. If, however, the committing crime was not a section 707, subdivision (b) offense, but was a Penal Code section 290, subdivision (d)(3) offense, the court is prohibited from recalling the commitment. Thus, section 731.1 has no application to section 733.
Accordingly, we reject the parties’ arguments that the minor’s commitment to DJJ was unauthorized.
DISPOSITION
The order committing the minor to DJJ is affirmed.
We concur: BLEASE , J. BUTZ , J.