Opinion
F041953.
10-27-2003
In re OSCAR A., A Person Coming Under The Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. OSCAR A., Defendant and Appellant.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Robert P. Whitlock and Kelly C. Fincher, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Wiseman, J., and Gomes, J.
Appellant Oscar A., a minor, admitted allegations he committed a violation of Health and Safety Code section 11378.5 (possession of a controlled substance, viz., phencyclidine) and that he committed a violation of the terms of his probation by testing positive for controlled substances. Following the disposition hearing, on September 26, 2002, the court ordered appellant committed to the California Youth Authority (CYA) and declared the maximum period of confinement to be seven years, based on the instant offense and offenses adjudicated in previous proceedings, including a 1997 adjudication of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)).
At the disposition hearing, the court stated that one of appellants previously adjudicated offenses was listed in Welfare and Institutions Code section 707, subdivision (b) but did not say which offense. Attached to the minute order of the disposition hearing was a "Confinement Time Attachment" (unnecessary capitalization omitted) which indicated that none of the aggregated offenses was listed in section 707(b). Subsequently, by its order of October 24, 2002, the court ordered that the Confinement Time Attachment be amended to indicate that appellants 1997 assault by means of force likely to produce great bodily injury was a section 707(b) offense.
Except as otherwise indicated, all further statutory references are to the Welfare and Institutions Code. We refer to section 707, subdivision (b) as section 707(b).
On appeal, appellant contends the court erred in determining that his 1997 adjudication of assault by means of force likely to produce great bodily injury was a section 707(b) offense. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 1997, the juvenile court found true an allegation that appellant "comes within the provisions of section 602 . . . in that" appellant committed an assault by means of force likely to produce great bodily injury in violation of Penal Code section 245, subdivision (a)(1). Appellant was 12 years old at the time of the 1997 offense.
Section 602 states in part: "(a) Except as provided in subdivision (b), any person who is under the age of 18 years when he or she violates any law of this state . . . is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court. [¶] (b) Any person who is alleged, when he or she was 14 years of age or older, to have committed [certain serious offenses] shall be prosecuted under the general law in a court of criminal jurisdiction . . . ."
DISCUSSION
Generally, both juvenile court jurisdiction and CYA commitments must terminate when the offender reaches age 21. However, "[i]n 1982 the Legislature amended the Welfare and Institutions Code to extend both juvenile court jurisdiction and CYA commitments to age 25 for minors who commit serious offenses. (Assem. Bill No. 961, Stats. 1982, ch. 1102, §§ 1-2, pp. 4003-4004.) It added subdivision (b) to section 607 which provides: `The court may retain jurisdiction over any person who is found to be a person described in Section 602 by reason of the commission of any of the offenses listed in subdivision (b) . . . of Section 707 until that person attains the age of 25 years . . . . (Italics added.) It also added subdivision (b) to section 1769 which provides: `Every person committed to the Department of the Youth Authority by a juvenile court who has been found to be a person described in Section 602 by reason of the violation [sic] of any of the offenses listed in subdivision (b) . . . of Section 707 , shall be discharged upon the expiration of a two-year period of control or when the person reaches his or her 25th birthday, whichever occurs later . . . . (Italics added.)" (In re Tino V. (2002) 101 Cal.App.4th 510, 512-513.)
Here, as indicated above, appellant was found to be a person described in section 602 for committing a violation of Penal Code section 245, subdivision (a)(1). And, as appellant does not dispute, that offense is listed in section 707(b). (§ 707, subd. (b)(14).) This factor notwithstanding, appellant argues "the extended CYA commitment [under section 1769, subdivision (b)] applies only to minors who are at least 14 years old at the time they commit a section [707(b)] offense"; he was only 12 years old when he committed the offense; and therefore his CYA commitment can not be extended to age 25 under section 1769, subdivision (b). The People disagree. Both parties rely on In re Tino V. , supra, 101 Cal.App.4th 510.
In that case, the minor had suffered two adjudications of violating section 245, subdivision (a)(1) when he was 14 years old. The juvenile court "decided that assault with a deadly weapon is listed in section 707, subdivision (b) and it extended the CYAs jurisdiction over the [the minor] to age 25." (In re Tino V., supra, 101 Cal.App.4th at p. 512.) On appeal, the minor argued that the extended commitment under section 1769, subdivision (b) applied only to minors 16 years of age or older, and therefore not to him. He based this contention on section 707, which provides that a minor is presumed to be unfit to be dealt with under the juvenile court law "in any case in which [the] minor is alleged to be a person described in Section 602 by reasons of the violation, when he was 16 years of age or older, of [any of the offenses enumerated in section 707(b)]."
(§ 707(b), emphasis added.) The court in Tino V. rejected the minors argument, holding that "section 1769, subdivision (b) authorizes [CYA] commitments to age 25 for juveniles under 16 years who commit an offense listed in section 707, subdivision (b)." (In re Tino V., supra, 101 Cal.App.4th at p. 512, fn. omitted.)
The court reasoned: "In determining the meaning of a statute, we look first to the words the Legislature used. [Citation.] "`If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature . . . ." [Citation.] [¶] Here the language is clear. Both sections 607, subdivision (b) and 1769, subdivision (b) refer to the offenses in section 707, subdivision (b), but only to designate the offenses that trigger extended commitments. Sections 607 and 1769 do not refer to section 707s 16-year age requirement, but they do refer to section 602. Section 602, subdivision (a) applies to `any person who is under the age of 18 years and subdivision (b) applies to those `14 years of age or older. Tino was 14 years old at the time of his offenses and thus comes within these sections." (In re Tino V., supra, 101 Cal.App.4th at p. 513, emphasis added.)
Based on language italicized in the passage from Tino V. quoted in the previous paragraph, appellant argues that under subdivision (b) of section 602, a minor cannot be "a person described in section 602" under section 1769, subdivision (b) unless he or she is 14 years of age or older. We disagree.
As indicated above, under subdivision (a) of section 602, a person comes "within the jurisdiction of the juvenile court" and "may [be] adjudge[d] . . . a ward of the court" if he or she, while under the age of 18, commits a criminal offense other than a curfew violation, unless subdivision (b) of section provides otherwise. (§ 602, subd. (a).) Subdivision (b) of section 602 thus creates an exception to the general rule as to what brings a minor within the jurisdiction of the juvenile court for wardship purposes. Specifically, that subdivision provides that a minor who is 14 years of age or older and who, under certain circumstances, commits one of several enumerated serious offenses, will be dealt with under the law applicable to adult offenders and not under the juvenile court law. (§ 602, subd. (b).) But section 602, subdivision (b) does not provide that a person must be 14 years of age or older in order to be a "person described in section 602" within the meaning of section 1769, subdivision (b). Nothing in section 602, section 1769, subdivision (b) or any other statutory provision indicates that a minor who is adjudicated a ward of the juvenile court for committing a section 707(b) offense is exempt from the commitment-extension provision of section 1769, subdivision (b) merely because he or she is younger than 14 years old.
See footnote 2.
See footnote 2.
We agree with the court in Tino V. that section 1769, subdivision (b) authorizes CYA commitments to age 25 of juveniles under the age of 16 who commit section 707(b) offenses, but we find puzzling that the court based its holding, in part, on subdivision (b) of section 602. The courts reference to the fact that "subdivision (b) [of section 602] applies to those `14 years of age or older " (In re Tino V., supra, 101 Cal.App.4th at p. 513) was unnecessary and, indeed, irrelevant to the courts conclusion that 14-year-old Tino was subject to section 1769, subdivision (b). Moreover, that conclusion appears to be at odds with the courts statement that Tino "comes within" section 602, subdivision (b). (Ibid.) Presumably a minor who "comes within" that subdivision would be a minor to whom that subdivision applies. However, as indicated above, subdivision (b) of section 602 describes persons who do not come within the jurisdiction of the juvenile court. Thus, if that subdivision applied to Tino, he could not be "a person described in section 602" within the meaning of section 1769, subdivision (b).
Our conclusion finds support in In re Julian O. (1994) 27 Cal.App.4th 847. That case dealt with subdivision (b) of section 607 which, as indicated above, was enacted simultaneously with section 1769, subdivision (b) and which extends to age 25 the period during which the juvenile court retains jurisdiction over a minor adjudicated of a section 707(b) offense. The minor in Julian O., in an argument that corresponds to appellants argument here, argued that section 607, subdivision (b) applied only to minors who were at least 16 years old at the time of the offense. Based on the statutes language and legislative history, the court rejected this argument, holding that "[t]he only conceivable intent which can be attributed to the Legislature is that it intended to extend the scope of section 607, subdivision (b) to minors of all ages." (In re Julian O., supra, 27 Cal.App.4th at p. 851, emphasis added.)
Similarly, section 1769, subdivision (b) applies to minors of all ages. Therefore, the court did not err in bringing appellant within the purview of that statute by determining that appellants 1997 Penal Code section 245, subdivision (a)(1) violation was a section 707(b) offense.
DISPOSITION
The order appealed from is affirmed.