IN RE D.B.Appellant’s Answer to Petition for ReviewCal.Dec 26, 2012= COPY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA In re D. B., a Person Coming Underthe Supreme Court Case No. $207165 Juvenile Court Law Third Appellate District Case No. C067353 PEOPLE OF THE STATE OF Superior Court Case No.: JV125361 CALIFORNIA, SUPREME COURT Plaintiffs and Respondents FILED Vv. DEC 2 6 2012 D.B., ;Frank A. McGuire Clerk Defendant and Appellant Deputy ANSWERTO PETITION FOR REVIEW APPEAL FROM THE SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO HONORABLE STACY BOULWARE EURIE, JUDGE PRESIDING Robert McLaughlin, Esq. State Bar No.164130 Boxer McLaughlin, A. P. C. 4695 MacArthur Court, Suite 1100 Newport Beach, CA 92660 Telephone No. (949) 798-6205 Fax No. (949) 798-5501 Attorney for Defendant and Appellant, D. B. By appointment ofthe Court ofAppeal under the Central California Appellate Program’s Independent Case System IN THE SUPREME COURT OF THE STATE OF CALIFORNIA In re D. B., a Person Coming Underthe Supreme Court Case No. 8207165 Juvenile Court Law Third Appellate District Case No. C067353 PEOPLE OF THE STATE OF Superior Court Case No.: JV125361 CALIFORNIA, Plaintiffs and Respondents D.B., Defendant and Appellant ANSWERTO PETITION FOR REVIEW APPEAL FROM THE SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO HONORABLE STACY BOULWARE EURIE, JUDGE PRESIDING Robert McLaughlin, Esq. State Bar No.164130 Boxer McLaughlin, A.P. C. 4695 MacArthur Court, Suite 1100 Newport Beach, CA 92660 Telephone No. (949) 798-6205 Fax No. (949) 798-5501 Attorney for Defendant and Appellant, D. B. By appointment ofthe Court ofAppeal underthe Central California Appellate Program’s Independent Case System TABLE OF CONTENTS Page TABLE OF CONTENTS............ cc cce eee eec eee eee e ee ee scene te eae eens i. TBLE OF AUTHORITIES...cece eesceseeeeseecenesesssssssesssseeesersessenenses ii STATEMENT OF THE CASE AND FACTS... 0... cece cece cece eee eees 2 REASONS FOR DENYING REVIEW.............:cce eee cece ee cece ee ee ees 2 I. THE THIRD DISTRICT DID NOT MISINTERPRET SECTION 733, SUBDIVISION(C)....... 0. cece eee cece ence eee e eee eeeeeeeeeneeeeeees 2 Il. THE THIRD DISTRICT’S DECISION WILL NOT CAUSE ABSURD CONSEQUENCES......... ccc cccece cece nee n eens eee eee e eee n eee n enna eee eens 4 CONCLUSION..........cccsccsssseccescceecesseecsecesseeeessseeesesseesecssrsscessaeeeensensesenaees 6 WORD COUNTCERTIFICATION............ cc ce cece cece eneee ee eeeeeeneees 7 TABLE OF AUTHORITIES Page Cases Inre C. H. (2011) 53 Cal. 4° 94.0... cccceceecceeeeetteeeeeneees 5-6 Inre Greg F. (2012) 55 Cal. 4" 393.......cccceeeeeeeeeeeeeeeeees 5 Inre N. D. (2008) 167 Cal. App. 4"° 885..........0000eceeeeeeeees 3 V. C. v. Superior Court (2009) 173 Cal. App. 4" 1455......... 3 Statutes California Rules of Court rule 8.500(a)(2)..........cccce eee ee ee eee 1 California Rules of Court rule 8.500(b)(1).......... cece eee eee 2 Penal Code section 148, subdivision (@)...............eeeeeeeeeeees 2 Penal Codesection 148.9, subdivision (a)............0ceeeeeee enone 3 Penal Code section 290.008, subdivision (C)..............ceeeee eee 2 Welfare and Institutions Code section 707, subdivision (b)....... 2-5 Welfare and Institutions Code section 731, subdivision (a)(4).... 5-6 Welfare and Institutions Code section 733, subdivision (c)......... 2-6 Welfare and Institutions Code section 782...............cseeeeeee eee 5 il. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA In re D. B., a Person Coming Under the Supreme Court Case No. 8207165 Juvenile Court Law Third Appellate District Case No. C067353 PEOPLE OF THE STATE OF Superior Court Case No.: JV125361 CALIFORNIA, Plaintiffs and Respondents Appellant and Petitioner ANSWERTO PETITION FOR REVIEW TO THE HONORABLE TANI GORRE CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA: Defendant and Appellant, D. B. (hereafter “Donnie”) respectfully submits his Answerto the Petition for Review (hereafter “petition”) filed by the People of the State of California, (hereafter “the petitioner”) pursuant to California Rules of Court rule 8.500(a)(2). As set forth more fully below, the Third District Court of Appeal correctly resolved the issue presented in the petition and review is inappropriate in this case. STATEMENT OF THE CASE AND FACTS The proceedingsandfacts are set forth in the Third Appellate District Court of Appeal’s October 31, 2012, opinion (hereafter “opinion”) attached to the petition as Exhibit “A.” REASONSFOR DENYING REVIEW Petitioner argues review is necessary, pursuant to California Rules of Court, tule 8.500(b)(1), to settle an important issue of law. (Petition, p. 4.) Petitioner claims the Third District Court of Appeal “misinterpreted and misapplied section 733, subdivision (c)” and its decision will “cause absurd consequencesin this case and others.” (Petition, p. 4.) Respectfully, petitioner is incorrect. I. THE THIRD DISTRICT DID NOT MISINTERPRET SECTION 733, SUBDIVISION (C) Petitioner is, in effect, asking this Court to rewrite Welfare and Institutions Code! section 733, subdivision (c). As the Third District noted, the plain language of the statute is “susceptible” to only one reasonable interpretation: a ward can only be committed to DJF if his most recent offense alleged and adjudicated in any petition is enumerated in either section 707, subdivision (b) or Penal Code section 290.008. (Opinion,p. 5.) Donnie’s most recent criminal offenses (Pen Code §§148, subdivision (a) ’ All further statutory references are to the Welfare and Institutions Code unless otherwise indicated. and 148.9, subdivision (a)), as alleged in the August 30, 2010, amended section 602 wardship petition, and found true by the juvenile court on October 13, 2010, occurred on May 30, 2010 — one week after his only “707(b)” offense. The presence of the robbery charge in Donnie’s most recent petition does not transform the May 23, 2010, robbery into his most recent offense. If the Legislature meant to say “any offense alleged in the most recent petition” it would have done so. Instead, the Legislature specifically stated: “the most recent offense alleged in any petition.” (§733, subd.(c).) The Third District’s construction of section 733, subdivision is not only denoted by its plain meaning, it is also consistent with the statute’s Legislative intent to reduce the number of youth offenders housed in State facilities. (Opinion, p. 5; In re N. D. (2008) 167 Cal. App. 4™ 885, 891- 892; V. Cv. Superior Court (2009) 173 Cal. App.4" 1455, 1468 — 1469.) Furthermore, Petitioner’s interpretation of section 733 would allow a court to send a juvenile to DJJ for an offense committed months or even years before his most recent non-DJJ eligible offense. The prosecuting agency would only need to file the offenses together in the same wardship petition. This possibility would stand in direct conflict with the plain meaning of section 733 and “result in consequencesinimicalto the statute’s purposes.” (Opinion, pp. 5 — 6.) * It is significant to note the adjective “most recent” modifies the word “offense” while the adjective “any” modifies the word “petition.” The Third District correctly interpreted section 733, subdivision (c). Any contrary interpretation would conflict with the statute’s plain meaning and Legislative intent. II. THE THIRD DISTRICT’S DECISION WILL NOT CAUSE ABSURD CONSEQUENCES Petitioner claims the Third District’s decision will lead to absurd consequences: ...under the Third District’s reading of the statute, as long as the Jast offense committed by a juvenile, temporally speaking, is a non-qualifying crime, he or sheis statutorily ineligible for a DJF commitment even ifall or some of the other crimes alleged in the petition and found to be true are qualifying offenses. (emphasis added)(Petition, p. 4.) Petitioner’s argument is based upon a fundamental misunderstanding of section 733, subdivision (c) and the Third District’s holding It is not enough for a juvenile to commit an offense to invoke the provisions of section 733, subdivision (c). The “most recent offense” must be also “alleged in any petition” and “admitted or found to be true by the court.” (§733, subd. (c).) Thus, before a ward can receive his “Get Out of Jail Free” card, the prosecution must allege the non-707(b) offense in a wardship petition and the juvenile court must find the allegation true. (Petition, p. 4.) Petitioner’s scenario of an incredibly sophisticated juvenile offender precluding a DJF disposition by committing a minor offense at the conclusion of a violent crime spree, while the prosecution and juvenile courts look on helplessly, is simply not consistent with reality. (Petition, pp. 4-5.) To the extent 733, subdivision (c) may have previously limited a juvenile court’s discretion and led to absurd consequences, this Court’s decision in Jn re Greg F. (2012) 55 Cal. 4" 393, negated the problem. In Greg F., supra, this Court found a juvenile court may, within the discretion afforded to it by section 782, dismiss a non-707(b) petition when a ward on probation for a DJF-eligible offense commits a new offensethat is not listed in section 707(b). Ud. at p. 400.) Pursuant to the reasoning in Greg F., the juvenile court in this case could have dismissed the May 30, 2010, misdemeanorallegations, in the interests of justice, and committed Donnie to DJF, based on the May 23, 2010, robbery. However, it did not do so. Instead, it chose to sustain the May 30, 2010, allegations. Now, and in the future, a juvenile court will be able to rely upon the Greg F. holding and exercise its discretion to fashion an appropriate disposition for each ward. It is not necessary for this Court to re-write section 733 to give juvenile courts the discretion they already have.(see Petition, pp. 4 — 5.) Finally, this Court should be guided by the approach it followed in Jn re C. H. (2011) 53 Cal. 4" 94. In C. H, this Court addressed the interplay of sections 731 and 733 and held: ...a juvenile court lacks authority to commit a ward to the DJF under section 731(a)(4) if that ward has never been adjudged to have committed an offense described in section 707(b), even if his or her most recent offense alleged in a petition and admitted or found true by the juvenile court is a sex offense set forth in section 290.008(c) as referenced in section 733(c). (Ud at pp. 97 — 98.) Rather than attempt to rewrite the statutes, this Court simply applied basic rules of statutory construction to properly resolve the matter. U/d. at pp. 100 — 109.) On February 29, 2012, the Legislature responded to the C. H. decision and amendedsections 731 and 733 to allow a ward to be committed to DJF if his most recent offense is described in either section 707 subdivision (b) or subdivision (c) of Penal Code section 290.008. To the extent any modifications to section 733 may be appropriate; the issue should be taken up with the Legislature - not this Court. CONCLUSION WHEREFORE, Donnie respectfully requests this Court to deny the Petition. Dated: December 23, 2012 Respectfully submitted, Robert geéghlin, Esq. Attorney for Appellant, D. B. WORD COUNT CERTIFICATION I, Robert McLaughlin,certify that, based on the word count ofthe computer program used to prepare this document, there are 1,238 words in Appellant’s Answerto Petition for Review in the case Jn re D. B. case number S207165, excluding the tables. I declare under penalty ofperjury under the laws of the State of California that the foregoing is true and correct. Executed at Newport Beach, California. Dated: December 23, 2012 RIEL.Lo7 RobertMets flin Case Name:In re D. B. No: 8207165 DECLARATION OF SERVICE I, the undersigned say: I am over 18 years of age, employed in the County of Orange, California, in which county the within mentioned delivery occurred, and am not a party to the subject cause. My business address is 4695 MacArthur Court, Suite 1100, Newport Beach, California 92660. I served Appellant’s Answer to Petition for Review of which a true and correct copy is affixed, by placing a copy thereof in a separate envelope for the addressee named hereafter by regular U. S. mail addressed and mailed as follows: Central California Appellate Program 2407 J Street, Suite 301 Sacramento, CA 95816 D.B. [appellant] (address confidential) Sacramento County Superior Court 9605 Kiefer Boulevard Sacramento, CA 95627 Office of the State Attorney General 1300 “TI”? Street P. O. Box 944255 Sacramento, CA 94244-2550 Office of the District Attorney Sacramento County P. O. Box 749 9805 Goethe Road Sacramento, CA 95827 California Court ofAppeal Third Appellate District 621 Capitol Mall, 10" Floor Sacramento, CA 95814 (continued on next page) The envelope was then sealed and, with the postage thereon fully prepaid, deposited in the United States mail by me at Newport Beach, California on December 24, 2012. I declare under penalty of perjury that the foregoing is true and correct. Executed by me on December24, 2012, at Newport Beach, California. Robert Vaan Esq.