IN RE: JOVAN B.

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Court of Appeal, Fifth District, California.

IN RE: JOVAN B., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. JOVAN B., Defendant and Appellant.

No. F016862.

Decided: July 29, 1992

Patricia A. Wynne, Sacramento, for defendant and appellant. Daniel E. Lungren, Atty. Gen., Sacramento, for plaintiff and respondent.

OPINION

This case presents the issue of whether the “offense committed while on bail or own recognizance” enhancement set forth in Penal Code section 12022.1 1 applies to juvenile court delinquency proceedings.   We conclude it does not.

Appellant Jovan B., a minor, appeals from the judgment rendered at a dispositional hearing following a finding that he violated section 140 and this offense was committed while he was “on-bail or own recognizance” release from an earlier charge of first degree burglary within the meaning of section 12022.1.

On July 1, 1991, a petition was filed in the juvenile court alleging that appellant was a person within the provisions of Welfare and Institutions Code section 602 because he violated section 459, burglary of an inhabited dwelling house.   On July 2, 1991, the court ordered him released from custody “[o]n [h]ouse arrest/electronic monitoring.”

On August 7, 1991, while subject to the aforementioned house arrest, appellant threatened a witness to the burglary.   He was arrested and a second juvenile wardship petition was filed which alleged a violation of section 140.

At a contested jurisdictional hearing held on August 9, 1991, the burglary allegation was found true.

A contested jurisdictional hearing on the second petition was held on August 26, 1991, at which the court permitted the petition charging the section 140 violation to be supplemented by a “new crime on bail or own recognizance release” enhancement allegation pursuant to section 12022.1.   The section 140 violation and the section 12022.1 allegation were found true.   Appellant was made a ward of the court based on the August 9, 1991, burglary finding, committed to juvenile hall for 30 days, and ordered to serve 30 days on house arrest.

On September 19, 1991, a dispositional hearing on the true findings as to the sections 140 and 12022.1 allegations was held.   Appellant was continued as a ward of the court, committed to juvenile hall for 30 days with credit for 29 days served, ordered to serve 24 hours on “the Community Service Program,” and placed on house arrest for 30 days.

DISCUSSION

Appellant argues the sentence enhancement pursuant to section 12022.1 2 is inapplicable to juvenile court proceedings because the statute requires a primary and a secondary felony conviction.   Because juvenile court adjudications pursuant to Welfare and Institutions Code section 602 are not “convictions” (Welf. & Inst.Code, § 203),3 appellant argues the section cannot apply to such proceedings.

Respondent contends not that juvenile adjudications are convictions, but rather that “[n]othing in the statute defining the enhancement requires a ‘conviction.’ ”   Respondent points to the language of subdivisions (a) and (b) of section 12022.1 which speak in terms of an arrest for a secondary offense which is committed while the individual is released from custody during the pendency of charges on the primary offense.   Respondent argues that references to “conviction” in subdivision (d) and following of section 12022.1 should be treated as being only intended to be applicable to an exception to application of the enhancement.   Conceding that if the literal construction of the term “convicted” as used by “procedural provisions” of the statute (meaning subd. (d) and following) is adopted, those provisions do not apply in juvenile cases, respondent suggests that those provisions nevertheless “should be adapted as appropriate to juvenile court procedures and terminology.”

California courts have not previously considered whether section 12022.1 may be applied in juvenile court proceedings.  Section 12022.1 was enacted in 1982 “to meet public concern over offenders who are arrested then allowed back on the street a short time later only to commit more crimes.”   (People v. Lewis (1986) 185 Cal.App.3d 923, 927, 230 Cal.Rptr. 115.)   It deters such conduct by enhancing the punishment of individuals who commit new crimes after having been released from custody on bail or their own recognizance for an earlier felony prior to the judgment on the earlier felony becoming final.  (People v. Warinner (1988) 200 Cal.App.3d 1352, 1356, 247 Cal.Rptr. 197;  People v. Superior Court (Price) (1984) 150 Cal.App.3d 486, 489, 198 Cal.Rptr. 61 [former § 12022.1].)

Whether this section applies to juvenile proceedings is a question of statutory construction.   In People v. Superior Court (Price), supra, 150 Cal.App.3d at pages 488–489, 198 Cal.Rptr. 61, the court concisely enunciates the precepts upon which such an analysis is based:

“If no ambiguity, uncertainty, or doubt about the meaning of a statute appears, the provision is to be applied according to its terms without further judicial construction.   If, on the other hand, there is ambiguity, uncertainty, or doubt, the statutory language should be construed so as to effectuate the apparent legislative purpose.   In interpreting legislation, we must begin with the fundamental rule that a court should ascertain the intent of the Legislature.   The court should seek to effectuate the intent of the law, acting in a reasonable fashion to give the statute a sensible construction in accordance with the purpose of the lawmakers, to promote rather than defeat the policy underlying the legislation.   We recognize that in the construction of penal statutes, we must give the benefit of any doubt to the criminal defendant.”

(See also People v. Overstreet (1986) 42 Cal.3d 891, 895–897, 231 Cal.Rptr. 213, 726 P.2d 1288.)   The reviewing court is to turn first to actual language of a given statute.  (Id. at p. 895, 231 Cal.Rptr. 213, 726 P.2d 1288.)   The court must construe the statute as a whole, “giving full effect to every word and clause, wherever possible.”  (In re Robert S. (1979) 92 Cal.App.3d 355, 361, 154 Cal.Rptr. 832.)   In this case, review of section 12022.1 clearly demonstrates that its drafters did not envision its application in juvenile court proceedings.

Section 12022.1 uses the term “conviction,” “convicted” or “reconviction” nine times.   Subdivision (d) provides that whenever there is a conviction for the second offense prior to conviction on the primary offense, the “enhancement shall be stayed pending imposition of the sentence for the primary offense.”   Subdivision (e) provides that if a person is convicted of a felony for the primary offense and sentenced to state prison, the enhancement is to run consecutive to the primary sentence.   Subdivision (f) provides that if a person is convicted of a felony for the primary offense and granted probation, any state prison sentence for the secondary offense shall be enhanced.   Finally, subdivision (g) provides that if the conviction on the primary offense is reversed on appeal, the enhancement is to be suspended pending retrial.   Upon “retrial and reconviction, ” the enhancement is to be reimposed.

Respondent's argument that the 1985 amendment to section 12022.1 removed the requirement of a felony conviction is without merit.   While it is true that the 1985 amendment removed references to persons “convicted of a felony” from the first three paragraphs of the statute and substituted therefor the language previously quoted, the result was a statute which on its face plainly changed existing law in a manner which is readily apparent without a tortured reading of the Legislature's words.   The Legislature is assumed to have been aware of then-existing judicial decisions interpreting the statute.   (In re Marriage of Bouquet (1976) 16 Cal.3d 583, 588, 128 Cal.Rptr. 427, 546 P.2d 1371.)   In Panos v. Superior Court (1984) 156 Cal.App.3d 626, 203 Cal.Rptr. 115, section 12022.1 as then worded was held to require that conviction on the first offense was an essential element of the enhancement rather than merely a predicate for execution of the enhanced penalty.   Thus under People v. Superior Court (Mendella) (1983) 33 Cal.3d 754, 763, 191 Cal.Rptr. 1, 661 P.2d 1081, 4 as a practical matter, section 12022.1 could only be applied to cases in which the defendant had been convicted of the first offense prior to the preliminary hearing on the second offense.   In Panos the court rejected the People's proffered interpretation of the statute as permitting imposition of the enhanced penalty at sentencing on the second charge prior to actual conviction on the first charge and staying execution pending subsequent conviction, saying that to do so would add to the statute a dimension not suggested by the Legislature's plain language.  (Panos v. Superior Court, supra, 156 Cal.App.3d at p. 630, 203 Cal.Rptr. 115.)   The wording of the subsequently enacted 1985 amendment directly and cogently addresses the precise “problem” with the statute which was discussed in the Panos decision.

The amendment also changed introductory language providing that a section 12022.1 enhancement may be alleged if the individual committed the second offense “pending trial” for the primary offense substituting therefor a provision that the enhancement applied to cases in which the defendant was released on the primary offense “prior to the judgment becoming final.”   Additionally, it modified the definition of “primary offense” to explicitly include an offense for which release on bail or one's own recognizance has been revoked.   In so doing, the amendment also avoided the problems discussed in People v. Lewis, supra, 185 Cal.App.3d 923, 230 Cal.Rptr. 115, People v. Overstreet, supra, 42 Cal.3d 891, 231 Cal.Rptr. 213, 726 P.2d 1288, and People v. Rodrigue (1986) 187 Cal.App.3d 828, 232 Cal.Rptr. 187. 5

The fact that the 1985 amendment, in words of great clarity and consistency, effected changes of considerable substance to the statute belies respondent's argument that the amendment was intended by the Legislature to accomplish another purpose which can only be discerned by reading section 12022.1 in a manner which fails to harmonize subdivisions (a) and (b) with subdivisions (d), (e), (f), and (g).   A statute must be read and considered as a whole, with all parts read together and harmonized so far as is possible.  (In re Bandmann (1958) 51 Cal.2d 388, 393, 333 P.2d 339;  Jones v. Tracy School Dist. (1980) 27 Cal.3d 99, 114, 165 Cal.Rptr. 100, 611 P.2d 441.)   As stated by Justice Mosk in his concurring opinion in People v. Rogers (1971) 5 Cal.3d 129, 142, 95 Cal.Rptr. 601, 486 P.2d 129, “To achieve this end, the doctrine of noscitur a sociis declares that the meaning of a word may be ascertained by reference to the meaning of other terms which the Legislature has associated with it in the statute, and that its scope may be enlarged or restricted to accord with those terms.  [Citations.]”  It would have been incongruous for the Legislature to have changed the language in subdivisions (a) and (b) by eliminating use of the term “conviction” for the purpose of making the enhancement applicable to juvenile court proceedings while retaining the use of “conviction” terminology in all the subdivisions which provide for the mechanics of applying or staying the enhancement (subds. (d) through (g)).

Furthermore, it is not only in reference to “convictions” that section 12022.1 is inconsistent with juvenile law.   Subdivision (a) refers to persons who commit a secondary offense while “released from custody on bail or on his or her own recognizance ” (emphasis added) on a primary offense.   Juveniles are not released on bail.  (See Welf. & Inst.Code, § 631.)   While they arguably might be said to be released on their own recognizance under certain circumstances (see Welf. & Inst.Code, §§ 635, 639), given their status as children, the law provides for their release to the custody of a parent, guardian, or responsible relative, i.e., on the recognizance of another.  (Welf. & Inst.Code, §§ 628, 628.1.) 6

Additionally, subdivision (c) of section 12022.1 requires the allegation of violation to be pled in the “information or indictment” or in a “complaint” and provides that it need not be proved at the “preliminary hearing.”   Juvenile court proceedings to declare a minor a ward of the court are commenced by the filing of a petition, not an information, indictment or a complaint.   (Welf. & Inst.Code, § 650.)   No preliminary hearing is held;  juveniles have been expressly denied this right because juvenile proceedings are not criminal in nature.  (In re T.R.S. (1969) 1 Cal.App.3d 178, 181, 81 Cal.Rptr. 574;  see also Welf. & Inst.Code, § 657.)

Next, subdivisions (d), (e), and (f) refer to “sentencing.”   Juveniles are not sentenced.  (See Welf. & Inst.Code, §§ 725–727;  In re Anthony R., 154 Cal.App.3d 772, 777, 201 Cal.Rptr. 299.)   Rather, a dispositional hearing is held at which an order for the minor's care and support is made.  (See Welf. & Inst.Code, § 727.)

A consideration of section 12022.1 as a whole inexorably leads to the conclusion that the Legislature did not intend for this section to be applied to juvenile proceedings.   While we conclude that the enhancement under section 12022.1 may not be applied to appellant, that is not to say that at the dispositional hearing the trial court was in any way precluded from considering as a circumstance of the case the fact that appellant committed the second offense while released on the first.   The dispositional order did not impose any confinement time or conditions which could not have been imposed absent the enhancement adjudication and we see no reasonable possibility that the conditions of the minor's probationary terms would have been different absent the finding of the enhancement.   Therefore, for purposes of judicial economy, we do not order remand for a new dispositional hearing.

DISPOSITION

The finding that appellant was a person who violated section 12022.1 is reversed and the trial court is directed to amend the September 19, 1991, dispositional order to reflect that the special allegation alleged pursuant to section 12022.1 is dismissed.   In all other respects, the judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   All statutory references are to the Penal Code unless otherwise indicated.

2.   Section 12022.1 provides as follows:“(a) For the purposes of this section only:“(1) ‘Primary offense’ means a felony offense for which a person has been released from custody on bail or on his or her own recognizance prior to the judgment becoming final, including the disposition of any appeal, or for which release on bail or his or her own recognizance has been revoked.“(2) ‘Secondary offense’ means a felony offense alleged to have been committed while the person is released from custody for a primary offense.“(b) Any person arrested for a secondary offense which was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years in state prison which shall be served consecutive to any other term imposed by the court.“(c) The enhancement allegation provided in subdivision (b) shall be pleaded in the information or indictment which alleges the secondary offense and shall be proved as provided by law.   The enhancement allegation may be pleaded in a complaint but need not be proved at the preliminary hearing for the secondary offense.“(d) Whenever there is a conviction for the secondary offense and the enhancement is proved, and the person is sentenced on the secondary offense prior to the conviction of the primary offense, the imposition of the enhancement shall be stayed pending imposition of the sentence for the primary offense.   The stay shall be lifted by the court hearing the primary offense at the time of sentencing for that offense and shall be recorded in the abstract of judgment.   If the person is acquitted of the primary offense the stay shall be permanent.“(e) If the person is convicted of a felony for the primary offense, is sentenced to state prison for the primary offense, and is convicted of a felony for the secondary offense, any state prison sentence for the secondary offense shall be consecutive to the primary sentence.“(f) If the person is convicted of a felony for the primary offense, is granted probation for the primary offense, and is convicted of a felony for the secondary offense, any state prison sentence for the secondary offense shall be enhanced as provided in subdivision (b).“(g) If the primary offense conviction is reversed on appeal, the enhancement shall be suspended pending retrial of that felony.   Upon retrial and reconviction, the enhancement shall be reimposed.   If the person is no longer in custody for the secondary offense upon reconviction of the primary offense, the court may, at its discretion, reimpose the enhancement and order him or her recommitted to custody.”

3.   Enacted in 1982 as part of the “Victim's Bill of Rights,” article I, section 28 of the California Constitution at subdivision (f) provides that prior felony convictions, “whether adult or juvenile” shall be utilized, without limitation, for purposes of impeachment and enhancement.   However, article I, section 28 did not abrogate Welfare and Institutions Code section 203, as the words “juvenile convictions” have been “narrowly construed to apply only to those minors who have been found unfit for juvenile adjudication, and who subsequently undergo criminal prosecution․”  (People v. Blankenship (1985) 167 Cal.App.3d 840, 852, 213 Cal.Rptr. 666;  see also People v. West (1984) 154 Cal.App.3d 100, 108, 201 Cal.Rptr. 63, which held that a juvenile wardship adjudication was not a prior conviction for enhancement purposes under section 667.)

4.   People v. Superior Court (Mendella), supra, 33 Cal.3d 754, 191 Cal.Rptr. 1, 661 P.2d 1081 held that an enhancement was subject to dismissal under section 995 if not proved at the preliminary hearing.

5.   These cases were published after enactment of the amendment but dealt with construction of the pre–1985 version of the statute.

6.   The juvenile in this case was released on “[h]ouse arrest/electronic monitoring” which would appear to be a type of home supervision authorized under Welfare and Institutions Code section 628.1.   Whether such a release under parental custody would qualify as a release on own recognizance has not been argued by the parties and need not be decided here in view of our conclusion that the statute is not applicable to juvenile court adjudications.

SCHULTZ, Associate Justice, Assigned.* FN* Assigned by the Chairperson of the Judicial Council.

ARDAIZ, Acting P.J., and THAXTER, J., concur.