Opinion
A136798
2013-09-10
IN RE DAVID R., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. David R., Defendant and Appellant.
Superior Court of the County of Del Norte, No. JDSQ126118, William H. Follett, Judge, (Del Norte County Super. Ct. No. JDSQ126118)Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, Ronald E. Niver and Huy T. Luong, Deputy Attorneys General, for Plaintiff and Respondent.Jonathan Soglin, San Francisco, and Stephanie Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Affirmed as modified.
Superior Court of the County of Del Norte, No. JDSQ126118, William H. Follett, Judge, (Del Norte County Super. Ct. No. JDSQ126118)
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, Ronald E. Niver and Huy T. Luong, Deputy Attorneys General, for Plaintiff and Respondent. Jonathan Soglin, San Francisco, and Stephanie Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Jones, P.J.
The juvenile court adjudicated David R. (the minor) a ward of the court after it determined he committed arson (Pen.Code, § 451, subd. (c)) and resisted a police officer (§ 148). The court placed the minor on probation and ordered him to register pursuant to section 457.1.
Unless otherwise noted, all further statutory references are to the Penal Code.
On appeal, the minor contends there is insufficient evidence of malice to support an arson finding. He also argues the arson registration requirement does not apply to him because he was not committed to the Department of Juvenile Facilities (DJF).
In the unpublished portion of the opinion, we conclude sufficient supports a finding of arson in violation of section 451, subdivision (c). In the published portion of the opinion, we conclude the court erred by requiring the minor to register as an arson offender pursuant to section 457.1 because he was not committed to, or paroled from, what was formerly known as the Department of Youth Authority or California Youth Authority (now the DJF). We therefore strike the section 457.1 registration requirement.
FACTUAL AND PROCEDURAL BACKGROUND
Crescent City Police Sergeant Erik Apperson went to the Masonic Lodge (lodge or building) and saw it was on fire. The damage to the building was extensive: the roof collapsed and the building's contents were “completely destroyed.” The lodge was declared “a total loss.”
After learning the 13–year–old minor and his friend, Michael H. (Michael), were “people of interest,” Sergeant Apperson and another law enforcement officer went to the minor's house and interviewed him. Initially, the minor told law enforcement officers he, his sister, and Michael were in the building before the fire and that he saw an African American man “exiting the building that he believed may be suspect.” Later, however, the minor said Michael was upstairs alone; the minor also said that later, Michael said he, Michael, “lit a carpet on fire.” Finally—and after being Mirandized—the minor “accept[ed] responsibility for finding [a cigarette] lighter upstairs, lighting a box and leaving the building while the box was burning.” The minor said he found the lighter in a desk drawer and lit a candle and then a box. “And then he also said he lit a box” on fire. According to Sergeant Apperson, the minor claimed to be “playing around. He was horseplaying.”
A fire captain specialist with the California Department of Forestry and Fire examined the building and determined there were “two possible causes” of the fire: “arson ... and playing with fire[.]”
The minor said he blew on the fire to put it out and was unsuccessful. In response, Sergeant Apperson told the minor he thought the minor blew on the fire to “cause the fire to burn more.” Sergeant Apperson explained that the minor may have denied he left the fire burning “at some point in the interview,” but by the end of the interview, “the idea was that he—he left it burning. He was aware that the fire had started and he fled the building.” The minor said he fled the building because he was “scared.”
Michael disagreed with the minor's claim that the minor blew on the fire to put it out.
The minor's 10–year–old sister, Jenny H. (Jenny), testified that she, the minor, and Michael went into the lodge and “messed up everything and threw soda on the ground[.]” They went upstairs, where they found “a whole bunch of boxes” and “lighters and stuff.” According to Jenny, the minor set fire to a cardboard box he found in a storage room. Right afterward, he left the room: “he just lit [the box] and took off[.]” Jenny initially testified that after the minor lit the fire, “[i]t went out and then he blowed [ sic ] it and then it tried to go back again” but the fire did not reignite. She also said, however, that the flame ignited again and the box was still burning when the minor left. Then Jenny said she “tried to blow it out when they went down there and then I couldn't, so I went down there with them.” She explained, “I was trying to blow it out and then he went out, and I said, wait, try and blow it out, and then he—he tried to blow it out. It blew out and then it—and then I tried to blow it out, and then it came right back up.”
After Jenny testified, the court concluded her “ability to relate what she saw definitely has some limitations.”
When the prosecutor tried to clarify the sequence of events, Jenny said the minor found a box and lit it on fire. About “five seconds” after he set the box on fire, the group left the room and quickly walked downstairs. Before they went downstairs, she and the minor blew on the box and the fire “just blew out, and then — and then it didn't light again.” According to Jenny, the box was not burning when the minor went downstairs. She testified she blew on the box after the minor left and the fire reignited. Then she stepped on the box and the fire “went out” and she ran downstairs. On redirect examination, Jenny said she knew the box “would light on fire” when she blew on it but she did it anyway. Jenny estimated she saw flames for five minutes before running away. On recross-examination, Jenny testified the fire was not out when the minor left the room. The fire “went out” and then “came back[.]”
In a Welfare and Institutions Code section 602 petition, the People alleged the minor committed arson (§ 451, subd. (c)) and resisted a police officer (§ 148). At the jurisdictional hearing, counsel for the minor argued there was insufficient evidence of “willful intent to burn the building or any malice. This was some kids horsing around, engaged in playing with fire, one of the most fascinating substances humans have ever discovered.” When the court asked about evidence of maliciousness, the prosecutor responded, “The simple act of lighting a box ... that does not belong to the defendant and on a property on which he is not authorized to be in for the purposes of igniting a box for the purposes of setting a fire.”
The court determined the minor committed arson in violation of section 451, subdivision (c), explaining “malicious is defined in the applicable jury instruction as when a person intentionally does a wrongful act. [¶] It appears to me that [the minor] knew that burning the box inside the Masonic Lodge was wrong. While he is only 13 years of age, he left. He didn't tell anybody. He left hurriedly, may have even tried to blow out the fire. I'm not sure about that. But it's clear to me that he knew what he did was wrong. And so that would give the maliciousness that's required.” The court found the minor “did intend to burn the box.” The court noted that Jenny's testimony was not critical because the minor admitted he started the fire and admitted to Sergeant Apperson “that it was burning when he left.” The court also determined the minor violated section 148.
At the dispositional hearing, the court declared the minor a ward of the court, ordered him to serve 6 to 12 months in juvenile hall, and placed him on probation after his release from custody. The court also ordered the minor to “register as an arsonist” pursuant to section 457.1.
DISCUSSION
I.
See footnote *, ante.
II.
The Court Erred by Ordering the Minor to Register Pursuant to Section 457.1
As stated above, the court ordered the minor to register pursuant to section 457.1, which provides in relevant part: “Any person who, having committed the offense of arson or attempted arson, and after having been adjudicated a ward of the juvenile court on or after January 1, 1993, is discharged or paroled from the Department of the Youth Authority shall be required to register, in accordance with the provisions of this section, until that person attains the age of 25 years, or until the person has his or her records sealed pursuant to Section 781 of the Welfare and Institutions Code, whichever comes first.” (§ 457.1, subd. (b)(3).)
The minor contends section 457.1's registration requirement does not apply to him because he was not committed to, or paroled from, what is now known as the DJF. He relies on In re Bernardino S.(1992) 4 Cal.App.4th 613, 5 Cal.Rptr.2d 746, ––– P.3d ––––, 1992 WL 47790 ( Bernardino S.), where the minor admitted performing a lewd and lascivious act upon a child under 14 in violation of section 288, subdivision (b). ( Id. at pp. 616–617, 5 Cal.Rptr.2d 746, ––– P.3d ––––.) The juvenile court adjudged the minor a ward of the court and ordered him to register as a sex offender pursuant to section 290, subdivision (d)(1), which at that time provided “(d)(1) Any person who, on or after January 1, 1986, is discharged or paroled from the Youth Authority to the custody of which he or she was committed after having been adjudicated a ward of the court pursuant to Section 602 of the Welfare and Institutions Code because of the commission or attempted commission of the following offenses shall be subject to registration under the procedures of this section: ... any offense defined in Section 288....” ( Id. at p. 619, 5 Cal.Rptr.2d 746, fn. 3, ––– P.3d ––––.)
We reject the People's contention, raised in a footnote, that the minor forfeited his right to challenge the registration requirement by failing to object in the juvenile court. “A sentence is said to be unauthorized if it cannot ‘lawfully be imposed under any circumstance in the particular case’ [citation], and therefore is reviewable ‘regardless of whether an objection or argument was raised in the trial and/or reviewing court.’ [Citations.] An obvious legal error at sentencing that is ‘correctable without referring to factual findings in the record or remanding for further findings' is not subject to forfeiture. [Citation.]” (See In re Sheena K. (2007) 40 Cal.4th 875, 887, 55 Cal.Rptr.3d 716, 153 P.3d 282 [forfeiture rule does not extend to challenges to probation conditions presenting pure questions of law].)
On appeal, the minor argued he was not required to register as a sex offender under section 290 because he was never committed to the Youth Authority. ( Bernardino S., supra, 4 Cal.App.4th at p. 619, 5 Cal.Rptr.2d 746, ––– P.3d ––––.) Our colleagues in Division Two agreed and held “By its plain words, ... section 290 requires registration of juvenile wards only when they are discharged or paroled from the Youth Authority after having been committed for one of the enumerated offenses. When the language of a statute is clear there is no occasion for construction and courts should not indulge in it. [Citation.] The plain language of section 290 says that it applies to a class of juveniles which does not include appellant. From this it follows that the statute does not require appellant's registration as a sex offender.” ( Id. at pp. 619–620, 5 Cal.Rptr.2d 746, ––– P.3d ––––.) The Bernardino S. court explained, “the legislative determination of who should register and who should not is exclusive, and ... the trial court cannot expand the legislative classification through its power to impose conditions of probation. Here the Legislature adopted a classification which exempted applicant from the registration requirement. We conclude that the trial court lacked the power to impose such a requirement.” ( Id. at pp. 623–624, 5 Cal.Rptr.2d 746, ––– P.3d ––––.)
As in Bernardino S., we conclude the registration requirement may not be imposed upon persons, including the minor, not specifically described in section 457.1. Like section 290, the legislative determination of who should register pursuant to section 457.1 is “exclusive” and “the trial court cannot expand the legislative classification through its power to impose conditions of probation.” ( Bernardino S., supra, 4 Cal.App.4th at pp. 623–624, 5 Cal.Rptr.2d 746, ––– P.3d ––––.) Had the Legislature intended for all persons adjudicated as wards of the court for committing arson or attempted arson to register, “ ‘it could have drafted the statute to accomplish that purpose.’ ” ( In re Luisa Z. (2000) 78 Cal.App.4th 978, 984, 93 Cal.Rptr.2d 231, ––– P.3d ––––, 2000 WL 230219.)
Analysis of the legislative history of section 457.1 supports our conclusion that the Legislature intended the registration requirement to apply to juveniles confined in—and then discharged or parole from—the DJF because of the commission of arson or attempted arson. In 1992, the Legislature amended section 457.1 to “extend [the] registration requirement to apply to a person discharged or paroled from the Department of the Youth Authority where he or she was confined because of a commission of the offense of arson or attempted arson....” (Legis. Counsel's Dig., Sen. Bill No.2008 (1991–1992 Reg. Sess.) ch. 691; see also Sen. Com. on Judiciary, com. on Sen. Bill No.2008 (1991–1992 Reg. Sess.) Mar. 31, 1992, p. 4 [“the bill would additionally extend this provision to apply to a person confined in CYA because of the commission or attempt to commit one of the specified offenses”].) Here, the minor was not confined in, nor discharged or paroled from the DJF.
We conclude the plain language of section 457.1 requires registration of juvenile wards only when they are discharged or paroled from the DJF after having been committed for arson or attempted arson. Because the minor was not “discharged or paroled” from the DJF, he was not required to register pursuant to section 457.1.
DISPOSITION
The juvenile court's dispositional order is modified by striking the condition requiring the minor to register pursuant to section 457.1. The jurisdictional and dispositional orders are otherwise affirmed. We concur: Simons, J. Bruiniers, J.