Opinion
Review Dismissed and Cause is Remanded Sept. 15, 1999.
Previously published at 62 Cal.App.4th 643
Susan B. Lascher, under appointment by the Court of Appeal, Ventura, for Defendant and Appellant.
Michael D. Bradbury, District Attorney, Robin McGrew, Deputy District Attorney, for Plaintiff and Appellant.
STEVEN J. STONE, Presiding Justice.
Here we hold that before a prior juvenile adjudication qualifies as a strike under the Three Strikes law (Pen.Code, §§ 667.5, subd. (c), 1192.7, subd. (c)), the minor must have been adjudged a ward of the juvenile court for an offense listed in Welfare and Institutions Code section 707, subdivision (b).
All statutory references are to the Penal Code unless otherwise stated.
PROCEDURAL HISTORY
Defendant Trevor James Gentry was convicted by jury of assault with a firearm (§ 245, subd. (a)(2)). Two prior offenses were alleged pursuant to the Three Strikes law, including (1) a 1993 juvenile adjudication of attempted first degree residential burglary (§§ 664/459) and (2) a 1994 juvenile adjudication of robbery with infliction of great bodily injury (§§ 211/12022.7).
Prior to trial, defendant moved to bar use of the prior juvenile adjudications. The trial court granted the motion, finding that they did not qualify as strikes under either section 667 or section 1170.12. The court bifurcated the priors from the trial of the primary offense and appellant waived his right to a jury trial on the truth of those adjudications.
Following defendant's conviction, the trial court reviewed various exhibits submitted by the People regarding the prior juvenile adjudications. The court determined that because defendant had not been subjected to a fitness hearing in juvenile court prior to the petitions being sustained, and because the offenses for which he had previously been adjudged a ward of the court were not listed in W & I section 707, subdivision (b), they were not strikes. On that basis, the court found the prior adjudications to be "not true."
Defendant was sentenced to four years in state prison. After examination of the record, defendant's appellate counsel filed a request for independent review pursuant to People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071. On November 15, 1996, we advised defendant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. He has not responded.
We have examined the entire record and are satisfied that defendant's attorney has fully complied with her responsibilities and that no arguable issues exist concerning his conviction. (People v. Wende, supra, 25 Cal.3d at p. 441, 158 Cal.Rptr. 839, 600 P.2d 1071.) The People appealed on the ground that the trial court erred in granting defendant's motion to bar use of the prior adjudications DISCUSSION
I.
APPEALABILITY
The People appeal pursuant to section 1238, subdivision (a)(2), claiming that the trial court's ruling resulted in the sustaining of an implied demurrer to the amended information. They also contend that the trial court's rulings resulted in an illegal sentence which is appealable pursuant to section 1238, subdivision (a)(10).
Section 1238, subdivision (a)(2) provides that an appeal may be taken by the People from a "judgment for the defendant on a demurrer to the ... information."
Section 1238, subdivision (a)(10) permits an appeal by the People from "[t]he imposition of an unlawful sentence.... As used in this paragraph, 'unlawful sentence' means ... the imposition of a sentence based upon an unlawful order of the court which strikes or otherwise modifies the effect of an enhancement or prior conviction."
Defendant has filed a motion to dismiss the People's appeal, contending that the trial court did not sustain an implied demurrer and the order finding the strikes to be "not true" was tantamount to an acquittal from which the People may not appeal. Defendant is correct that the People "have no right of appeal except as provided by statute." (People v. Bailey (1996) 45 Cal.App.4th 926, 929, 53 Cal.Rptr.2d 198.) Nonetheless, we conclude that the court's order barring use of the prior offenses and then finding them to be "not true" constituted an order which "struck" or "otherwise modifie[d] the effect of" defendant's prior convictions. (§ 1238, subd. (a)(10).) The trial court's ruling in this case, which involved sentencing considerations, had the same effect as if the court had issued an order striking those priors. Generally, "[a]n order striking a prior is appealable ...." (People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1123, 231 Cal.Rptr. 387.)
The cases cited by defendant regarding the effect of the court's failure to make a finding regarding the truth of the prior convictions are inapposite. The explicit relief sought in defendant's pretrial motion was for the court to strike the priors. We discern no distinction between the court's first "barring" their use and then finding them to be "not true," and striking them from the information. The court reviewed the records of the prior proceedings and determined that they did not constitute strikes. The court's ruling was not a resolution of some factual element of the charged offense and thus does not constitute an acquittal.
II.
NO REQUIREMENT OF EXPRESS FINDING OF FITNESS
The People contend that the trial court erred in its determination that the prior juvenile adjudications do not constitute strikes because the juvenile court made no express finding that he was a "fit and proper subject to be dealt with under the juvenile court law." (§§ 667, subd. (d)(3)(C), 1170.12, subd. (b)(3)(C).)
Following oral argument in this case, the California Supreme Court held that such an express finding of fitness is not required for a prior juvenile adjudication to qualify as a strike. (People v. Davis (1997) 15 Cal.4th 1096, 1102-1103, 64 Cal.Rptr.2d 879, 938 P.2d 938.) Accordingly, the trial court erred in its determination that defendant's prior juvenile adjudications did not constitute strikes on that basis.
III.
PRIOR JUVENILE ADJUDICATIONS AS STRIKES
Another issue raised in People v. Davis, supra, 15 Cal.4th 1096, 64 Cal.Rptr.2d 879, 938 P.2d 938, which the Supreme Court left "for another day" (id., at p. 1103, 64 Cal.Rptr.2d 879, 938 P.2d 938), is whether prior juvenile adjudications for offenses described as "serious" or "violent" felonies (§§ 667.5, subd. (c), 1192.7, subd. (c)), but not The Three Strikes sentencing law is found in two statutes: section 667, subdivisions (b)-(j), enacted by the Legislature in March 1994, and section 1170.12, added by the voters, effective November 9, 1994 (Cal. Const., art. II, § 10, subd. (a)). Under both statutes, a criminal defendant is eligible to receive a longer prison sentence for certain prior serious or violent felonies described as strikes.
Prior felonies are defined identically in section 667, subdivision (d), and section 1170.12, subdivision (b), as: "(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 in this state;" "(2) A conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison;" and "(3) [Certain] prior juvenile adjudication[s]...."
Ordinarily, an order adjudging a minor to be a ward of the juvenile court is not deemed to be a criminal conviction for any purpose. (W & I, § 203.) However, the Three Strikes law creates an exception to that long-standing rule, provided the prior juvenile adjudications meet certain requirements.
Under section 667, subdivision (d)(3), a juvenile adjudication will constitute a strike if "... (A) The juvenile was 16 years of age or older at the time he or she committed the prior offense. [p] (B) The prior offense is listed in subdivision (b) of Section 707 of the Welfare and Institutions Code or described in paragraph (1) [California convictions for serious or violent felonies] or (2) [out-of-state convictions for serious or violent felonies] as a felony. [p] (C) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law. [p] (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."
Section 1170.12, subdivision (b)(3), is worded slightly differently, and clauses (A) through (D) are separated by the word "and." Otherwise, the statutes are substantively indistinguishable. Clauses (B) and (D), as they will be referred to hereafter, are effectively the same.
In both statutes, clause (B) provides that a prior juvenile adjudication will constitute a strike if it is an offense listed in W & I section 707, subdivision (b), or is described in section 667.5 as a "violent" felony or section 1192.7, subdivision (c) as a "serious" felony. (§§ 667, subd. (d)(3)(B), 1170.12, subd. (b)(3)(B).) Clause (D) in both statutes also requires that the juvenile must have been adjudged a ward of the court pursuant to W & I section 602 because the juvenile committed an offense listed in W & I section 707, subdivision (b). (§§ 667, subd. (d)(3)(D), 1170.12, subd. (b)(3)(D).)
A problem arises because clauses (B) and (D) are internally inconsistent. Not every "serious" or "violent" felony is included in W & I section 707, subdivision (b). For example, appellant's prior juvenile adjudications were not for offenses listed in W & I section 707, subdivision (b), but they are found in section 1192.7. In other words, the prior juvenile adjudications qualify under clause (B), but not clause (D). We must therefore reconcile the conflicting provisions.
The People urge us to reject a literal interpretation of clause (D) and hold that the prior juvenile adjudication need not be limited to offenses listed in W & I section 707, subdivision (b). They argue that such a construction frustrates the legislative intent of the Three Strikes law to ensure "greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses." (§ 667, subd. (b).) Further, they assert it would render clause (B) superfluous to the extent that it includes not only W & I section 707, subdivision (b) offenses, but also "violent" or "serious" felonies.
Defendant responds that the language of clause (D) is clear and unambiguous. He argues that because it unequivocally limits prior juvenile adjudications which constitute strikes to those listed in W & I section 707, To resolve that conflict, we resort to rules of statutory construction. First, in construing a statute, our primary task is determining the Legislature's intent. (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 724, 257 Cal.Rptr. 708, 771 P.2d 406.) There is no dispute that the purpose of the Three Strikes law is to increase punishment for recidivist offenders. (§ 667, subd. (b); People v. Dotson (1997) 16 Cal.4th 547, 552, 66 Cal.Rptr.2d 423, 941 P.2d 56.) One interpretation advocated by the People--obliteration of clause (D) from the statutes--is certainly consistent with the goal of increasing punishment for recidivist offenders. (§ 667, subd. (b).)
However, other established rules of statutory construction cannot be ignored simply because the Legislature desires to punish a class of persons more harshly. (See People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 973, 979, 60 Cal.Rptr.2d 93, 928 P.2d 1171 ["While a defendant's recidivist status is undeniably relevant, it is not singularly dispositive ..." of whether a trial court may exercise its discretion to reduce a felony to a misdemeanor.]; People v. Davis, supra, 15 Cal.4th at p. 1115, 64 Cal.Rptr.2d 879, 938 P.2d 938 (dis. opn. of Kennard, J.) ["A court construing a statute, however, can never be guided by public sentiment alone.... [I]n construing the Three Strikes law, it is not enough to say that because the Legislature and the electorate wished to impose tougher penalties on repeat violent offenders, we should therefore give that enactment the harshest possible construction. Judges are constrained by the law. For the sake of the predictability and stability of the law, our guideposts in interpreting the Three Strikes law must be the usual principles of statutory construction that apply in every case, not our projections of the hopes and fears that led to the statute's enactment."].)
When a statute is capable of more than one construction, or its provisions conflict, courts must attempt to harmonize and reconcile it in a manner which carries out the Legislature's intent. (Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 788, 176 Cal.Rptr. 104, 632 P.2d 217.) At the same time, where a penal statute is ambiguous and susceptible to two reasonable interpretations, we must adopt that construction which is most favorable to the defendant. (In re Christian S. (1994) 7 Cal.4th 768, 780, 30 Cal.Rptr.2d 33, 872 P.2d 574; People v. Davis (1981) 29 Cal.3d 814, 828, 176 Cal.Rptr. 521, 633 P.2d 186.)
The People have proposed another rendition of the statute, which is to find that clauses (A) and (B), and clauses (C) and (D) are "two parallel but complimentary sets of criteria to be utilized." Not only does this ignore the use of the word "and" in section 1170.12 (indicating the drafters' intent that the four criteria be read conjunctively), but it is also unconstitutional.
The effect of that interpretation would be that a juvenile adjudication would constitute a strike if either (1) the juvenile was 16 years of age or older and committed a "serious" or "violent" felony or an offense listed in W & I section 707, subdivision (b), or (2) the minor was under 16 years of age, found to be a fit and proper subject for treatment in juvenile court, and adjudged a ward of the court for an offense listed in W & I section 707, subdivision (b). The second set of criteria would apply to those 14 and 15 year olds who commit crimes listed in W & I section 707, subdivision (b), but who are found fit to be dealt with in juvenile court. (Welfare and Institutions Code, § 707, subd. (d)(1).)
Although minors under the age of 16 could not be tried as adults when the Three Strikes law was enacted in March 1994, the Legislature immediately amended W & I section 707 to permit minors as young as 14 to be tried as adults. (Stats. 1994, ch. 448, § 3, ch. 453, § 9.5.)
The flaw with such a construction is that persons who suffered juvenile adjudications for offenses which are listed in W & I section 707, subdivision (b), but which are not "serious" or "violent" felonies would be treated more harshly than adults who commit the Such a construction violates the equal protection clauses of the 14th Amendment to the United States Constitution and article I, section 7 of the California Constitution. A defendant who was convicted of such offenses as a juvenile is subject to the Three Strikes law for a broader class of crimes than a similarly-situated defendant who suffered an adult prior conviction. We discern no rational basis for punishing persons who commit the same crime more harshly if they were adjudicated a ward of the court at age 16 (when persons have traditionally been treated less punitively) rather than at age 20 (when persons presumably are more culpable for their conduct).
The same flaw results if we determine that the Legislature and electorate intended to include "serious" and "violent" felonies with those offenses listed in W & I section 707, subdivision (b), when counting a juvenile adjudication as a strike. In other words, clause (D) might read: "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 or described in paragraph (1) or (2) as a felony." That construction suffers the same constitutional infirmity as that advocated by the People because W & I section 707, subdivision (b), expands the list of qualifying strike offenses. This view of the statute was recently adopted by the Fifth District Court of Appeal in People v. Griggs (1997) 59 Cal.App.4th 557, 69 Cal.Rptr.2d 174, with no discussion of the equal protection problem. Therefore, we decline to follow Griggs.
On the other hand, if we interpret clause (B) as a limit on clause (D), neither becomes superfluous. Then, only those W & I section 707, subdivision (b), offenses which are also "serious" or "violent" felonies would be included. Those offenses which are not "serious" or "violent" would not be added to the list.
A difficulty with this interpretation is that certain juvenile adjudications will not constitute strikes, such as voluntary manslaughter (§ 1192.7, subd. (c)(1)); rape which is not accomplished by force or violence or threat of great bodily harm (§§ 1192.7, subd. (c)(3), 667.5, subd. (c)(3)); kidnapping a child under the age of 14 (§ 667.5, subd. (c)(14), (15)); a felony in which the defendant inflicts great bodily injury (§ 667.5, subd. (c)(8)); and residential burglary (§ 1192.7, subd. (c)(18)). (All these crimes would be strikes if committed by an adult.) Further, this view requires us to alter the language of clause (B) to replace the "or" disjunctives with "and" conjunctives.
Thus, we are caught between one view of the statute which promotes the legislative intent of punishing recidivist offenders but which creates an unequal application of the law, and another view which permits some offenders with prior juvenile adjudications for "violent" or "serious" felonies to avoid the Three Strikes penalty. Neither option is palatable, but short of declaring the law so vague and ambiguous as to be unconstitutional, we must select that interpretation which best satisfies all principles of statutory construction and does not run afoul of the equal protection clause. The dissent claims we unnecessarily resort to hypothetical situations to salvage a badly written statute. However, we must do so to produce a sound analysis for constitutional purposes. It would be a disservice to uphold an interpretation which places us on the "slippery slope" of sacrificing constitutional principles for practical results.
Ordinarily, if a statute is clear and unambiguous, appellate courts are not at liberty to rewrite it. But an appellate court may correct a statute's use of an erroneous word such as "and" instead of "or" in order to effectuate the clear intent of a statute. (People v. Skinner (1985) 39 Cal.3d 765, 217 Cal.Rptr. 685, 704 P.2d 752.) Moreover, the "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." (Wells v. Marina City Properties, Inc., supra, 29 Cal.3d at p. 788, 176 Cal.Rptr. 104, 632 P.2d 217.)
Adherence to the requirement prescribed in clause (D)--the construction most favorable to a defendant and not constitutionally infirm--does not contravene the intent of the Three Strikes law. Most of the serious or violent felonies which are included within sections 667.5, subdivision (c), and 1192.7, subdivision (c), are included within W & I section 707, subdivision (b). That some are excluded by application of clause (D) does not defeat the overall purpose of the statute.
It is reasonable to assume that the Legislature and electorate recognized that some offenses which are serious or violent offenses will not, by themselves, qualify as strikes if committed by a juvenile unless the minor was adjudged a ward of the court for a W & I section 707, subdivision (b), offense. (See Viking Pools, Inc. v. Maloney (1989) 48 Cal.3d 602, 608, 257 Cal.Rptr. 320, 770 P.2d 732 [in enacting a statute, the Legislature is deemed to be aware of statutes and judicial decisions in effect and to have enacted the new statute with the existing law in mind].)
An interpretation of the statutes which gives effect to both clauses (B) and (D) avoids rendering portions of the statutes surplusage. (Dix v. Superior Court (1991) 53 Cal.3d 442, 279 Cal.Rptr. 834, 807 P.2d 1063; People v. Gilbert (1969) 1 Cal.3d 475, 480, 82 Cal.Rptr. 724, 462 P.2d 580.) It does not lead to "absurd results" (People v. Morris (1988) 46 Cal.3d 1, 14, 249 Cal.Rptr. 119, 756 P.2d 843) because it is consistent with the historical treatment of juvenile offenders in a manner different from adult offenders. (See, e.g., In re Joseph B. (1983) 34 Cal.3d 952, 196 Cal.Rptr. 348, 671 P.2d 852 [statute requiring defendants who stand convicted upon a guilty plea to secure a certificate of probable cause to appeal does not apply to minors charged in juvenile court]; People v. West (1984) 154 Cal.App.3d 100, 201 Cal.Rptr. 63 [because a juvenile court adjudication is not a conviction, it cannot be a prior serious felony conviction for purposes of enhancing the sentence for a subsequent adult felony conviction]; In re Anthony R. (1984) 154 Cal.App.3d 772, 778, 201 Cal.Rptr. 299 [Proposition 8 did not "abrogate a linchpin of the Juvenile Court Law--the distinction between a criminal conviction and a juvenile adjudication."].)
If the Legislature determines that our construction of the confusing statute excludes too many juvenile adjudications, it is free to amend sections 667.5 and 1170.12 or W & I section 707, subdivision (b), to harmonize the three statutes.
The trial court was correct in determining that the prior juvenile adjudications did not qualify as strikes because defendant was not adjudged a ward of the court for an offense included in W & I section 707, subdivision (b), as required under clause (D).
The judgment is affirmed.
GILBERT, J., concurs.
YEGAN, Associate Justice, dissenting.
I respectfully dissent. The three strikes issue presented in this appeal was left "for another day" by our Supreme Court in People v. Davis (1997) 15 Cal.4th 1096, 1103, 64 Cal.Rptr.2d 879, 938 P.2d 938. The majority create a conflict in the opinions of the Court of Appeal that can only be resolved by the I agree with People v. Griggs (1997) 59 Cal.App.4th 557, 69 Cal.Rptr.2d 174 (rev.den. Feb. 18, 1998), which held that a juvenile adjudication which qualifies as a strike pursuant to Penal Code section 667, subdivision (d)(3)(B) is a strike notwithstanding the fact that it is not listed in Welfare and Institutions Code section 707, subdivision (b). The court so held on the theory that for the adjudication to come within the ambit of either Penal Code section 667.5 subdivision (c) (violent felony) or section 1192.7 subdivision (c) (serious felony) on the one hand, and Welfare and Institutions Code section 707, subdivision (b) on the other, was a "drafting oversight." (People v. Griggs, supra, 59 Cal.App.4th at p. 561, 69 Cal.Rptr.2d 174.) It construed the entire statutory scheme to avoid a "bizarre result." (Id. at p. 561, 69 Cal.Rptr.2d 174.)
In my view, the majority here reach such a result and resort, in part, to a hypothetical analysis to do so. (Maj. op. pp. 801-802.) They should not do so. "The rule is well established, however, that one will not be heard to attack a statute on grounds that are not shown to be applicable to himself and that a court will not consider every conceivable situation which might arise under the language of the statute and will not consider the question of constitutionality with reference to hypothetical situations. [Citations.]" (In re Cregler (1961) 56 Cal.2d 308, 313, 14 Cal.Rptr. 289, 363 P.2d 305; see also People v. Brown (1973) 35 Cal.App.3d 317, 327, 110 Cal.Rptr. 854.) We need not consider the situation where the juvenile adjudication qualifies only under Welfare and Institutions Code section 707, subdivision (b) and not under Penal Code sections 1192.7, subdivision (c) or 667.5, subdivision (c). That issue should be left for another day.
Appellant's juvenile adjudications are for robbery with infliction of great bodily injury and attempted residential burglary. Both qualify as strikes when committed by an adult. (Pen.Code, §§ ll92.7, subd. (c)(8), 667.5 subd. (c)(8) [any felony with great bodily injury]; and ll92.7 subd. (c)(18) and (27), People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 506, 53 Cal.Rptr.2d 789, 917 P.2d 628 [attempted residential burglary].) Thus, appellant is the type of offender who, had he committed the offenses as an adult, fits squarely within the Three Strikes law. Appellant was sentenced to four years in prison for assault with a firearm. This seems lenient. When measured against the spirit of the Three Strikes law, it seems lenient as a matter of law. (See People v. Williams (1998) 17 Cal.4th 148, 161, 69 Cal.Rptr.2d 917, 948 P.2d 429.)
I do not fault the majority for their conscientiously held views. They are not responsible for the poor drafting of the Three Strikes law. However, the result reached by People v. Griggs, supra, is rooted in practicality and common sense. It makes no sense to say that the list of included offenses which qualify as strikes in Penal Code section 667, subdivision (d)(3)(B) is null and void because section 667, subdivision (d)(3)(D) makes reference to Welfare and Institutions Code section 707, subdivision (b), which lists crimes not mentioned in Penal Code section 667, subdivision (d)(3)(B).
In my view, the "true" intent of the Three Strikes law is stated in Penal Code section 667, subdivision (d)(3)(B): "The prior offense [qualifies as a strike if it] is listed in subdivision (b) of Section 707 of the Welfare and Institutions Code or described in paragraph (1) [§§ 667.5, 1192.7] or (2) [foreign priors which include the elements of the offenses specified in §§ 667.5 and 1192.7] as a felony." (Emphasis added.) The use of the word "or" in this subdivision should control. That is to say, juvenile adjudications qualify as strikes if they meet either criterion.