Opinion
In denying review, the Supreme Court ordered that the opinion be not officially published. (See California Rules of Court— Rules 976 and 977).
Ordered Not Published Previously published at: 72 Cal.App.4th 1165
[DEPUBLISHED BY ORDER DATED SEPTEMBER 15, 1999]
Respondent's petition for review DENIED.
The Reporter of Decisions is directed not to publish in the Official Appellate Reports the opinion in the above-entitled case, filed June 10, 1999, which appears at 72 Cal.App.4th 1165. (Cal. Const., art. VI, section 14; rule 976, Cal. Rules of Court.) [Copyrighted Material Omitted] COUNSEL
[85 Cal.Rptr.2d 721] George Bond, Sacramento, and Deborah Prucha, Woodland, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Michael J. Weinberger and Ruth Saavedra, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MORRISON, J.
In this case we interpret the three strikes law (Pen.Code, § 667, subds.(b)-(i) and Pen.Code, § 1170.12) to determine what juvenile adjudications qualify as strike priors. Specifically, we must determine if a juvenile adjudication for an offense, such as first degree burglary (Pen.Code, § 459), that is a violent felony under Penal Code section 667.5, subdivision (b), or a serious felony [85 Cal.Rptr.2d 722] under Penal Code section 1192.7, subdivision (c), but that is not an offense listed in subdivision (b) of Welfare and Institutions Code section 707 qualifies. We determine it does not and reverse the judgment.
This issue was recognized in People v. Davis (1997) 15 Cal.4th 1096, 1103, 64 Cal.Rptr.2d 879, 938 P.2d 938, but left " for another day." It is now before the California Supreme Court in People v. Gentry (1998) 62 Cal.App.4th 643, 72 Cal.Rptr.2d 797 review granted June 24, 1998 (S069817). Defendant's argument in this case is based on Gentry.
Defendant sold methamphetamine to an undercover agent on two occasions. He was charged with two counts of selling methamphetamine (Healths&sSaf.Code, § 11379, subd. (a)). Six years earlier, when defendant was 17, he was adjudged a ward of the court following a sustained petition alleging first degree burglary. When the district attorney in this case became aware of this prior adjudication, he amended the complaint to add the allegation of a strike prior. The trial court denied defendant's motion to dismiss the prior. Defendant entered a plea of no contest to the charges. He was sentenced to six years in prison and obtained a certificate of probable cause to bring this appeal.
The three strikes law is contained in two statutes: Penal Code section 667, subdivisions (b) through (i), enacted by the Legislature in March 1994, and Penal Code section 1170.12, adopted by initiative (Proposition 184) in November 1994 (hereinafter § 667 and § 1170.12). Both statutes provide increased sentences for those convicted of a felony who have a previous conviction for a serious or violent felony. (§ 667, subd. (e); § 1170.12, subd. (c).) Prior convictions of a felony that qualify as strikes are: " (1) Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony.... [¶ ] (2) A conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison [and] ... includes all of the elements of the particular felony as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7. [¶ ] (3) [Certain] prior juvenile adjudication[s]." (§ 667, subd. (d); § 1170.12, subd. (b).)
Subdivision (d)(3) of section 667 provides: " (3) A prior juvenile adjudication shall constitute a prior felony conviction for purposes of sentence enhancement if:
" (A) The juvenile was 16 years of age or older at the time he or she committed the prior offense. " (B) The prior offense is listed in subdivision (b) of section 707 of the Welfare and Institutions Code or described in paragraph (1) [serious or violent felonies] or (2) [out-of-state felonies] as a felony.
" (C) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law.
" (D) The juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code."
Subdivision (b)(3) of section 1170.12 contains a " virtually identical provision." (People v. Davis (1997) 15 Cal.4th 1096, 1100, fn. 2, 64 Cal.Rptr.2d 879, 938 P.2d 938.)
Here, it is undisputed that defendant was 16 or older. In People v. Davis, supra, 15 Cal.4th 1096, 64 Cal.Rptr.2d 879, 938 P.2d 938, the Supreme Court determined that an express finding of fitness is not required. Our concern in this case is with section 667, subdivisions (d)(3)(B) and (d)(3)(D) (hereafter subdivision (d)(3)(B) and (d)(3)(D)) defining a prior juvenile adjudication. Subdivision (d)(3)(B) provides the prior offense must be listed in Welfare and Institutions Code section 707, subdivision (b) or be a serious or violent felony. (Subd. (d)(3)(B); § 1170.12, subd. (b)(3)(B).) Subdivision (d)(3)(D) requires an adjudication that the juvenile is a ward of the court because he or she committed an offense listed in Welfare and Institutions Code section 707, subdivision (b). (Subd. (d)(3)(D); § 1170.12, subd. (b)(3)(D).)
The problem in this case arises because the list of offenses in Welfare and Institutions Code section 707, subdivision (b) is not identical to the violent offenses in Penal Code sections 667.5, subdivision (c), and serious [85 Cal.Rptr.2d 723] offenses in Penal Code section 1192.7, subdivision (c). First degree burglary is a serious offense under Penal Code section 1192.7, subdivision (c)(18), but it is not listed in subdivision (b) of Welfare and Institutions Code section 707.
In interpreting the statutory language to determine if a juvenile adjudication for first degree burglary qualifies as a strike prior, we look first to the language of the statute. (Freedom Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6 Cal.4th 821, 826, 25 Cal.Rptr.2d 148, 863 P.2d 218.) Under the literal language, a juvenile adjudication for first degree burglary does not qualify because it fails to meet subdivision (d)(3)(D); defendant was not adjudged a ward of the court because he committed an offense listed in subdivision (b) of Welfare and Institutions Code section 707. The problem with this interpretation is that it renders a portion of subdivision (d)(3)(B), the reference to serious and violent felonies, nugatory. While subdivision (d)(3)(B) encompasses both section 707, subdivision (b) felonies and serious and violent felonies, if the juvenile adjudication must arise from an offense listed in subdivision (b) of Welfare and Institutions Code section 707, the inclusion of serious and violent felonies is of no effect. An interpretation that renders related provisions nugatory is to be avoided. (Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 647, 335 P.2d 672.) A literal reading violates the rule of statutory construction that we should give effect and significance to every word. (Garcia v. McCutchen (1997) 16 Cal.4th 469, 476, 66 Cal.Rptr.2d 319, 940 P.2d 906.)
To the extent that serious and violent felonies differ from those listed in Welfare and Institutions Code section 707, subdivision (b), there is a conflict between subdivision (d)(3)(B) and subdivision (d)(3)(D). " It is fundamental that legislation should be construed so as to harmonize its various elements without doing violence to its language or spirit. Wherever possible, potentially conflicting provisions should be reconciled in order to carry out the overriding legislative purpose as gleaned from a reading of the entire act. [Citation.] A construction which makes sense of an apparent inconsistency is to be preferred to one which renders statutory language useless or meaningless. [Citation.]" (Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 788, 176 Cal.Rptr. 104, 632 P.2d 217.)
The parties provide differing interpretations of subdivision (d)(3)(B) and subdivision (d)(3)(D) that give meaning to the reference to serious and violent felonies in subdivision (d)(3)(B). The Attorney General, relying on People v. Griggs (1997) 59 Cal.App.4th 557, 561, 69 Cal.Rptr.2d 174, argues that the failure to include serious and violent felonies in subdivision (d)(3)(D) " must be viewed as a drafting oversight." This interpretation requires rewriting subdivision (d)(3)(D) to include serious and violent felonies. This revision could be accomplished by adding: " or described in paragraph (1) or (2) as a felony." The Griggs court found there was no other rational explanation for the omission. " It would make no sense to require a prior offense to be listed in statute A— even if not listed in statute B— but then to bar use of the resulting adjudication because the adjudicated offense was not listed in statute B." ( Ibid . )
Defendant offers an alternative interpretation that provides a rational explanation for subdivision (d)(3)(D) as written. He argues the reference to serious and violent felonies in subdivision (d)(3)(B) is intended as a limit on subdivision (d)(3)(D). In other words, a juvenile adjudication counts as a strike prior only if it is both an offense listed in subdivision (b) of Welfare and Institutions Code section 707and a serious or violent felony. This construction can be reached by changing the or in subdivision (d)(3)(B) to an and.
In interpreting a statute, our primary task is to determine the intent of the Legislature. (Freedom Newspapers, Inc. v. Orange County Employees Retirement System, supra, 6 Cal.4th 821, 826, 25 Cal.Rptr.2d 148, 863 P.2d 218; Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224.) Here the legislative intent was unambiguously " to ensure longer prison sentences and greater [85 Cal.Rptr.2d 724] punishment for those who commit a felony and have been previously convicted of serious and/or violent offenses." (§ 667, subd. (b).) This expressed intent provides little guidance in this case. Either interpretation will result in longer sentences for some felons with prior juvenile adjudications. Juvenile adjudications are generally not treated as convictions. (Welf.s&sInst.Code, § 203.) Since the express legislative intent speaks only of those with prior convictions, it does not answer the question which juvenile adjudications are now to be treated as prior convictions. (People v. Davis, supra, 15 Cal.4th 1096, 1113, 64 Cal.Rptr.2d 879, 938 P.2d 938 (dis. opn. of Kennard, J.).)
Defendant argues his interpretation comports with the rule that a statute should be interpreted to eliminate doubts as to the statute's constitutionality. ( In re Kay (1970) 1 Cal.3d 930, 942, 83 Cal.Rptr. 686, 464 P.2d 142.) Defendant contends that if a juvenile adjudication for any offense listed in subdivision (b) of Welfare and Institutions Code section 707 qualifies as a strike prior, then serious questions of equal protection will arise. There are several offenses listed in subdivision (b) of Welfare and Institutions Code section 707, such as discharging a firearm into an inhabited building (Id., § 707, subd. (b)(15)), dissuading a witness or suborning perjury (id., § 707, subd. (b)(19)), manufacturing controlled substances (id., § 707, subd. (b)(20)), or escape from juvenile hall (id., § 707, subd. (b)(22)), that are not serious or violent felonies. The effect of including juvenile adjudications for these offenses as strikes, is that commission of these offenses by a juvenile would be treated more harshly than commission of these offenses by an adult. There is no rational basis for treating those who commit the same crime more harshly if they committed the crime as juveniles. This problem arises under either the literal language of the statute or the interpretation proposed by the Attorney General and Griggs , supra , 59 Cal.App.4th 557, 69 Cal.Rptr.2d 174; it arises if juvenile adjudications for any offense listed in subdivision (b) of Welfare and Institutions Code section 707 is a strike prior. Only by limiting those offenses further to those that are also serious or violent felonies is the problem solved. The Attorney General dismisses this argument on the grounds that one cannot attack a statute on the basis of hypothetical constitutional problems that do not apply to his situation. ( In re Cregler (1961) 56 Cal.2d 308, 313, 14 Cal.Rptr. 289, 363 P.2d 305; but see People v. Davis, supra, 15 Cal.4th at p. 1102, 64 Cal.Rptr.2d 879, 938 P.2d 938 [discussing potential constitutional problem].) We agree that because a statute might be unconstitutional as applied does not conclusively determine its interpretation. If this was the only argument in favor of defendant's interpretation it might fail. Defendant's interpretation, however, comports with other important rules of statutory construction.
Generally, a juvenile adjudication is not treated as a conviction. " An order adjudging a minor to be a ward of the juvenile court shall not be deemed a conviction of a crime for any purpose." (Welf.s&sInst.Code, § 203; see also In re Joseph B. (1983) 34 Cal.3d 952, 196 Cal.Rptr. 348, 671 P.2d 852 [no certificate of probable cause required for juvenile to contest adjudication based on admission]; In re Eric J. (1979) 25 Cal.3d 522, 530, 159 Cal.Rptr. 317, 601 P.2d 549 [juveniles adjudged wards of the court not similarly situated with adults in criminal justice system]; People v. West (1984) 154 Cal.App.3d 100, 106-110, 201 Cal.Rptr. 63 [juvenile adjudication not a prior conviction under Penal Code section 667, subdivision (a) ]; In re Anthony R. (1984) 154 Cal.App.3d 772, 201 Cal.Rptr. 299 [juvenile adjudication not a prior conviction for petty theft with a prior].) In treating certain juvenile adjudications the same as prior convictions, section 667, subdivision (d)(3) and section 1170.12, subdivision (b)(3) are creating exceptions to the general rule. " [E]xpress exceptions to the general statutory rule are to be strictly and narrowly construed and will not be extended beyond the import of their terms. [Citation.]" (San Diego Union v. City Council (1983) 146 Cal.App.3d 947, 954, 196 Cal.Rptr. 45.) A strict and narrow construction favors defendant's interpretation.
Finally, it is the rule that where a penal statute is ambiguous, it is to be construed [85 Cal.Rptr.2d 725] in favor of defendant. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, 53 Cal.Rptr.2d 789, 917 P.2d 628 [interpreting three strikes law].) This rule is more than mere guidance to statutory interpretation, it is grounded in constitutional principles. The first is the due process requirement of proof beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368, 375.) In applying the rule more than 100 years ago to interpret a statute, the California Supreme Court noted: " the defendant is entitled to the benefit of every reasonable doubt, whether it arise out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute, ..." ( Ex parte Rosenheim (1890) 83 Cal. 388, 391, 23 P. 372.)
The second constitutional principal recognized in the rule that ambiguities are construed in favor of the defendant is that of separation of powers. After the adoption of the Penal Code in 1872, there are no common law crimes in California. (Pen.Code, § 6.) " [S]ubject to the constitutional prohibition against cruel and unusual punishment, the power to define crimes and fix penalties is vested exclusively in the legislative branch. [Citations.]" (Keeler v. Superior Court (1970) 2 Cal.3d 619, 631, 87 Cal.Rptr. 481, 470 P.2d 617.) " In other words, criminal statutes will not be built up ‘ by judicial grafting upon legislation....’ " (People v. Ralph (1944) 24 Cal.2d 575, 581, 150 P.2d 401.)
Once the literal wording of the statute is rejected because it results in nullifying part of the statutory language, we are left with an ambiguity. It is clear that the Legislature and the People intended that the determination of which juvenile adjudications count as strike priors be made by reference to the list of offenses in subdivision (b) of Welfare and Institutions Code section 707. (§ 667, subds.(d)(3)(B)s&s (d)(3)(D); § 1170.12, subds. (b)(3)(B)s&s(b)(3)(D).) The role that the characterization as a serious or violent felony plays in making the determination of which juvenile adjudications qualify as strike priors is less clear. Following the rules of statutory construction, we adopt the interpretation that defendant proposes. The reference to violent and serious felonies in subdivision (d)(3)(B) is intended as a limitation on the felonies listed in subdivision (b) of Welfare and Institutions Code section 707. This construction requires replacing the " or" in subdivision (d)(3)(B) with an " and." This is the type of drafting error that may be rectified by judicial construction. (Cf . People v. Skinner (1985) 39 Cal.3d 765, 775, 217 Cal.Rptr. 685, 704 P.2d 752 [replacing " and" with " or" in Penal Code section 25, subdivision (b) ].)
The result of this construction is that juvenile adjudications for some serious and violent felonies, such as first degree burglary, that would be strikes if committed by an adult, are not counted as strikes. This result is not absurd or bizarre. It is reasonable that the Legislature and the People, in making a sharp break from the historical practice of not treating juvenile adjudications as prior convictions, chose to limit those juvenile adjudications to those that are both serious or violent felonies and recognized by subdivision (b) of Welfare and Institutions Code section 707 as so serious as to raise a presumption of unfitness for treatment in the juvenile court system. The judgment is reversed. The finding that defendant had a prior conviction under the three strikes law is stricken. The matter is remanded for resentencing on the two counts of selling methamphetamine.
Indeed, the ballot pamphlet for the initiative version of the three strikes law suggested that not every violent or serious crime would be considered a prior strike if established as a juvenile adjudication, but only that the specified juvenile adjudications that constituted a prior strike " generally include" the same crimes (suggesting that they were not identical to the prior strikes for adults): " ... [S]pecified crimes committed by a minor, who was at least age 16 at the time of the crime, count as a previous conviction. These specified crimes generally include the same crimes defined as serious and violent felonies." (Ballot Pamp., analysis of Prop. 184, Gen. Elec. (Nov. 8, 1994) p. 33.)
SIMS, Acting P.J., and KOLKEY, J., concur.