Opinion
A158575
08-03-2021
IN RE NOAH S., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. Noah S., Defendant and Appellant.
Amanda K. Roze, under appointment by the First District Court of Appeal for Defendant and Appellant. Xavier Becerra, Attorney General of California, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Gregg E. Zywicke, Deputy Attorney General for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts A, B, C, and D of the Discussion.
Amanda K. Roze, under appointment by the First District Court of Appeal for Defendant and Appellant.
Xavier Becerra, Attorney General of California, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Gregg E. Zywicke, Deputy Attorney General for Plaintiff and Respondent.
Fujisaki, Acting P.J. Noah S. (Minor) appeals after a juvenile court sustained wardship allegations that he committed attempted robbery and elder abuse. On appeal, he argues the evidence fails to support the allegations, the court erroneously failed to specify a maximum term or calculate custody credits and to stay punishment on one of the counts under section 654, and the court erred in concluding the attempted robbery offense fell within Welfare and Institutions Code section 707, subdivision (b).
In the published portion of this opinion, we reject Minor's contention that his attempted robbery adjudication does not fall within Welfare and Institutions Code section 707, subdivision (b). In the unpublished portion of this opinion, we reject Minor's remaining contentions. We affirm the orders of the juvenile court.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2018, the People filed a juvenile wardship petition charging Minor with over a dozen crimes, such as motor vehicle burglaries and vandalism, in San Mateo County. Minor entered a plea admitting one felony motor vehicle burglary count. ( Pen. Code, § 460, subd. (b). ) The Superior Court of San Mateo County adjudged him a ward and transferred his case to Contra Costa County prior to his disposition hearing.
All further statutory references are to the Penal Code unless otherwise indicated.
While Minor's wardship was ongoing, the People filed a supplemental juvenile wardship petition alleging Minor, who was then 14 years old, committed attempted robbery ( §§ 664, 211 ) and caused or permitted an elder or dependent adult to suffer ( § 368, subd. (b)(1) ). As to both offenses, the People alleged Minor personally inflicted great bodily injury on the victim who was 70 years old or older ( § 12022.7, subd. (c) ). The People also added an allegation that the attempted robbery offense fell within section 1203.09, subdivision (b)(2). The following is a summary of the evidence presented at the contested jurisdiction hearing in August 2019.
Philippe E. testified that on the afternoon of July 26, 2019, he and his wife, Jacqueline E., went to a restaurant to have lunch. Afterwards, he loaded his walker into the back of his car, and his wife indicated to him there was a young man in front of their car. Philippe E. saw the young man, who looked around 15 years old, talking to his wife. When Jacqueline E. did not get into the car, Philippe E. got out and found her on the ground. She raised her hand to him, not for help getting up, but just wanting to hold his hand. She asked him what happened in English, which was strange because the two always spoke to each other in French. Philippe E., thinking his wife was "not in her natural state," called 911.
Jacqueline E. testified she was 88 years old at the time of the incident. She recalled walking to the passenger side of her car after lunch but had no memory of what happened thereafter, even after viewing surveillance video of the incident. She could only recollect being in an ambulance en route to the hospital. Jacqueline E. said she was "out completely," though she returned home from the hospital the same day and received no further medical treatment. She also got her purse back the same day and had not lost anything. After the incident, she had a "huge" hematoma on the side of her head, bigger than a baseball. At the time of the hearing, the hematoma was still there, though it was the size of a quarter or dollar coin. The hematoma was sensitive to the touch, and Jacqueline E. could not sleep on that side of her head. After the incident, she had to lie down and rest several times throughout the day for about a week, because she could not stay on her feet for more than 15 minutes to half an hour. This was not the case prior to the incident. She also had a headache "for the last week or so," and she had neck pain, though she was not sure the neck pain was connected to the incident. Surveillance video of the incident was admitted into evidence. It shows Philippe E. and Jacqueline E. leaving the restaurant. Jacqueline E. has a purse in her hand. The couple load Philippe E.’s walker into the trunk and, as Jacqueline E. opens the front passenger door, a young man runs up and talks to her. The young man moves closer as Philippe E. begins to get into the driver's seat. The young man gestures to Jacqueline E. that he wants to walk past her. When she steps aside to let him pass, he grabs her purse and breaks into a run. Jacqueline E., however, does not let go of the purse and neither does the young man. Instead, he pulls or drags her from the front passenger side of the car to the rear trunk area on the driver's side, where she falls, slams into the ground, and rolls on the pavement (somehow still holding the purse). Per the clock embedded in the surveillance video, two to three seconds elapses from the grabbing to the fall. After the fall, the young man turns toward Jacqueline E., but keeps running. Once Jacqueline E. stops rolling, she lays completely still on the pavement; the video ends about 10 seconds later. During this time, Philippe E.—who was getting into the driver's seat of the car—does not appear to have noticed the commotion.
A police officer took fingerprints from where the young man touched the car. The fingerprints matched Minor's. That officer testified that Jacqueline E. was still on the ground when he arrived at the scene. Though she was conscious, she was confused and could not tell him what happened. The officer saw that Jacqueline E. had a head injury and blood in her hair; he also saw a bloodspot on the ground near her head about four inches long and three inches wide.
After considering the evidence, the juvenile court sustained the allegations in the supplemental petition in their entirety and found the attempted robbery adjudication qualified as an offense under Welfare and Institutions Code section 707, subdivision (b). At the disposition hearing, the court continued Minor's wardship, and committed him to a ranch facility for 12 months with a 180 day "aftercare period." Minor appealed.
DISCUSSION
See footnote *, ante .
E. The Offense Falls Within Welfare and Institutions Code Section 707, Subdivision (b)
Minor contends his attempted robbery adjudication does not fall within Welfare and Institutions Code section 707, subdivision (b) ( "707(b)"). This contention presents an issue of statutory interpretation, which we review de novo. ( People v. Gonzalez (2017) 2 Cal.5th 1138, 1141, 218 Cal.Rptr.3d 150, 394 P.3d 1074.)
Various consequences arise when an offense falls within Welfare and Institutions Code section 707(b). For example, such an offense impacts whether and when juvenile records can be sealed or destroyed. (See, e.g., Welf. & Inst. Code, §§ 781, subds. (a)(1)(D), (d) & 786, subds. (a), (d).)
" ‘As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature's intent so as to effectuate the law's purpose. [Citation.] We begin by examining the statute's words, giving them a plain and commonsense meaning. [Citation.]’ [Citation.] ‘ "When the language of a statute is clear, we need go no further." [Citation.] But where a statute's terms are unclear or ambiguous, we may "look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part." ’ " ( People v. Harrison (2013) 57 Cal.4th 1211, 1221–1222, 164 Cal.Rptr.3d 167, 312 P.3d 88.)
As relevant here, Welfare and Institutions Code section 707(b) provides: "This subdivision is applicable to any case in which a minor is alleged to be a person described in Section 602 by reason of the violation of one of the following offenses," including "[a]n offense described in Section 1203.09 of the Penal Code." ( Welf. & Inst. Code, § 707(b)(16).) In turn, section 1203.09 contains two subdivisions pertinent to our review. Section 1203.09, subdivision (a), provides: "Notwithstanding any other law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person who commits or attempts to commit one or more of the crimes listed in subdivision (b) against a person who is 60 years of age or older; or against a person who is blind, a paraplegic, a quadriplegic, or a person confined to a wheelchair and that disability is known or reasonably should be known to the person committing the crime; and who during the course of the offense inflicts great bodily injury upon the person." (Italics added.) Section 1203.09, subdivision (b), provides that subdivision (a) applies to the crime of robbery. ( § 1203.09, subd. (b)(2).)
Under the plain language of these statutes, an attempted robbery against the particular types of victims specified in section 1203.09 —e.g., a victim who is 60 years of age or older, where the perpetrator inflicts great bodily injury—is an offense described in section 1203.09 and therefore qualifies as an offense falling within Welfare and Institutions Code section 707(b).
Minor contends we should read Welfare and Institutions Code section 707(b)(16) —which explicitly states Welfare and Institutions Code section 707(b) applies to an "offense described in Section 1203.09 of the Penal Code"—as referring only to offenses described in subdivision (b) of section 1203.09. We are not persuaded. Had the Legislature intended such a limitation, it could easily have included language to that effect. But the Legislature did not do so, and we cannot rewrite the statutory language as Minor urges. While Minor additionally observes that section 1203.09, subdivision (a), mainly concerns probation eligibility, the point has no force inasmuch as the entire statute concerns probation ineligibility. At bottom, Welfare and Institutions Code section 707(b)(16) is crystal clear in its application to an "offense described in Section 1203.09 of the Penal Code."
Contrary to Minor's assertion, our conclusion does not render superfluous the attempted murder provision in Welfare and Institutions Code section 707(b)(12). That is because Welfare and Institutions Code section 707(b)(12) applies broadly to any attempted murder, while any attempted crime under section 1203.09, including attempted murder and attempted robbery, specifically requires a victim "who is 60 years of age or older; or ... a person who is blind, a paraplegic, a quadriplegic, or a person confined to a wheelchair" and whose "disability is known or reasonably should be known to the person committing the crime," plus the infliction of "great bodily injury." Thus, giving effect to the plain terms of the two statutes implicates no redundancy or surplusage and does not lead to absurd consequences.
Although we need not go further because the statutory language is unambiguous, our examination of the legislative history—particularly concerning the 2008 amendment to Welfare and Institutions Code section 707(b)(16) and the 1994 amendment to Welfare and Institutions Code section 707(b)(12) —reveals nothing supporting Minor's position. (Legis. Counsel's Dig., Sen. Bill No. 1498 (2007–2008 Reg. Sess.) [indicating revision from "any" to "an" in Welfare and Institutions Code section 707(b)(16) was a "nonsubstantive" change to "maintain the codes"]; Assem. Com. on Pub. Safety, Rep. on Assem. Bill No. 1948 (1993–1994 Reg. Sess.) as amended Jan. 3, 1994 [indicating "assault with intent to commit murder"—previously enumerated in Welfare and institutions Code section 707(b)(12) —was being replaced with crime of attempted murder because the former offense was "no longer found in the Penal Code"].)
Finally, Minor latches onto David P. v. Superior Court (1982) 127 Cal.App.3d 417, 179 Cal.Rptr. 673, where the court concluded attempted robbery is not an enumerated crime in Welfare and Institutions Code section 707(b). But the court in David P. did not purport to determine whether attempted robbery against elderly or disabled victims where the perpetrator inflicts great bodily injury could be an enumerated offense by way of section 1203.09. "Cases are not authority, of course, for issues not raised and resolved." ( San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 943, 55 Cal.Rptr.2d 724, 920 P.2d 669.)
Beyond the foregoing, Minor reiterates his challenge to the sufficiency of the evidence of great bodily injury. As already discussed in part C, ante , substantial evidence supports the attendant great bodily injury enhancement.
In sum, we conclude Minor's adjudication for attempted robbery is an offense described in section 1203.09 and so falls within Welfare and Institutions Code section 707(b).
Given this conclusion, we need not and do not address Minor's argument that he suffered from ineffective assistance of counsel because his attorney below conceded the attempted robbery fell within Welfare and Institutions Code section 707(b).
DISPOSITION
The orders of the juvenile court are affirmed.
WE CONCUR:
Petrou, J.
Judge of the Superior Court of San Mateo County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.