PEOPLE v. RENKO

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Richard Todd RENKO, Defendant and Appellant.

No. D023059.

Decided: April 15, 1996

Kevin C. McLean, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Robert M. Foster, Supervising Deputy Attorney General, and David Delgado–Rucci, Deputy Attorney General, for Plaintiff and Respondent.

Richard Renko (Renko) appeals a judgment following a jury verdict convicting him of residential burglary (Pen.Code, §§ 459, 460)2 and receiving stolen property (§ 496, subd. (a)) and a court finding convicting him of resisting arrest (§ 148).3  Renko waived his right to a jury trial regarding allegations that he had two no-probation prior convictions (§ 1203, subd. (e)(4)), one prison prior conviction (§ 667.5, subd. (b)), one serious felony prior conviction (§§ 667, subd. (a)(1), 1192.7, subd. (c)(8)) and three prior serious or violent felony convictions (§§ 667, subds. (b)-(i), 1192.7, subd. (c)(8) & (18)).   The court found the allegations true.   Two of the three prior serious or violent felony convictions alleged pursuant to section 667, subdivisions (b)-(i) were juvenile adjudications.   At the sentencing hearing, the court denied probation and sentenced Renko to an indeterminate term of 25 years to life in prison for residential burglary pursuant to section 667, subdivisions (d) and (e).   The court also sentenced Renko to an indeterminate term of 25 years to life in prison for receiving stolen property, but stayed imposition of the sentence pursuant to section 654.   No sentence was imposed for the conviction of resisting a police officer.   No disposition was made with regard to the prior prison conviction or the prior serious felony conviction alleged pursuant to section 667.5, subdivision (b) and section 667, subdivision (a)(1), respectively.   The court also imposed a $1,000 restitution fine.

On appeal, Renko contends he was denied effective assistance of counsel because his attorney failed to object to certain closing statements by the prosecutor which purportedly referred to his failure to testify.   Renko further contends the court erred by sentencing him to 25 years to life in prison pursuant to the “three strikes” law (§ 667, subds. (b)-(i)), specifically asserting:  (1) his two prior juvenile adjudications for residential burglary could not be used as “prior strikes” because the juvenile court made no finding that he was a “fit and proper subject” and his juvenile adjudications were made without the right to a jury trial;  (2) his sentence is cruel and unusual punishment prohibited by the state and federal constitutions;  (3) his prior juvenile adjudications pre-dated the enactment of the three strikes law and the juvenile court did not at the time determine his adjudications to be “strikes” for purposes of the three strikes law;  and (4) the three strikes law is unconstitutionally vague and failed to give him adequate notice of the specific punishment to be imposed.   We affirm his convictions but conclude the court erred by using his prior juvenile adjudications as prior serious or violent felony convictions in sentencing him under the three strikes law.   We remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

On April 14, 1994, Dorothy Duhaime (Duhaime) was living at 1306 Belleview Avenue in Cardiff.   At approximately 11 a.m., Duhaime left the house after closing the windows and locking the doors.   When Duhaime returned to her house between 5 and 6 p.m., she discovered that her living room couch had been moved, her jewelry chest had been opened and her clothes were strewn on the floor.   A white pillow case, jewelry and money were missing from Duhaime's house.   She called the San Diego County Sheriff's Department.

At approximately 5:20 p.m., Deputy Sheriff Lawrence Bovet (Bovet) was on patrol approximately four miles from Duhaime's house when he observed Renko walking along a street wearing a backpack.   Unaware of the Duhaime burglary, Bovet stopped Renko and questioned him about an unrelated matter.   He asked Renko whether he could search his backpack.   Renko dropped his backpack on the trunk of Bovet's vehicle and fled.   Bovet gave chase and eventually cornered Renko in a fenced-in driveway.   A search of Renko's pockets produced jewelry and currency taken from Duhaime's house.   A search of Renko's backpack produced a pillowcase containing jewelry and coins taken from Duhaime's house.   After learning of the Duhaime burglary, Bovet had Renko's shoes taken to the scene for comparison of their soles with a shoe print found at Duhaime's house.   Deputy Sheriff Arthur Wager compared the soles of the shoes with the shoe print and concluded there was a match.4

Duhaime identified the items found on Renko and in his backpack as her property.   She did not know Renko and she had never given him permission to enter her house or take any of her property.

At trial Renko did not present any evidence in his defense.

DISCUSSION

IRENKO WAS NOT DENIED EFFECTIVE ASSISTANCE OF COUNSEL*

II

THE COURT ERRED BY CONSIDERING RENKO'S PRIOR JUVENILE ADJUDICATIONS IN SENTENCING HIM PURSUANT TO THE THREE STRIKES LAW

Renko contends the court erred by considering his prior juvenile adjudications to be “strikes” for purposes of sentencing under the three strikes law (§ 667, subds. (b)-(i)) because:  (1) a finding of fitness was not made by the juvenile court in connection with his juvenile adjudications (§ 667, subd. (d)(3)(C));  and (2) he was not afforded the right to a jury trial in those juvenile court proceedings.

A

The amended information alleged that on or about May 3, 1985, the San Diego County Juvenile Court “convicted” Renko of two residential burglaries (§§ 459, 460).   It also alleged that on or about November 17, 1989, Renko was convicted as an adult in the Amador County Superior Court of battery with serious bodily injury (§ 243, subd. (d)).  In a bifurcated court trial on these allegations, the court received into evidence a 49–page document consisting of Renko's juvenile court record.   It also heard the testimony of Joseph Rubin (Rubin), the attorney who represented Renko in the juvenile court proceedings.   Rubin testified that it “was never determined [Renko] was fit or unfit to be handled in the juvenile court.”   Rather, he said, “It was assumed that [Renko] was [fit] because there was no request by the district attorney to [make] a determination he was unfit.”   The court denied Renko's motion to dismiss the juvenile adjudication allegations and then found the allegations to be true.   Considering Renko's prior juvenile adjudications to be “prior strikes,” the court sentenced Renko under the three strikes law (§ 667, subds. (b)-(i)) to an indeterminate term of 25 years to life in prison on his conviction for burglarizing Duhaime's house.   Without the two prior juvenile adjudications only one “prior strike” would have been found true and the 25–years–to–life sentence would be inappropriate.  (See § 667, subd. (e)(1).)

B

Section 667, subdivision (d)(3) of the three strikes law provides that notwithstanding any other law, certain prior juvenile adjudications are to be considered “prior felony convictions” for purposes of its sentencing provisions:

“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) or (2) 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.” (Italics added.)

The dispositive question in this case, which appears to be a question of first impression, is whether the finding required by section 667, subdivision (d)(3)(C) must be an express finding or can be merely an implied finding.   The People concede that the juvenile court made no express finding that Renko was a “fit and proper subject” in its juvenile court proceedings, but argue the juvenile court implicitly found him a “fit and proper subject” by conducting a juvenile court adjudication and this implied finding satisfies the section 667, subdivision (d)(3)(C) requirement.

C

 We conclude Renko's prior juvenile adjudications cannot be considered prior felonies for purposes of sentencing pursuant to section 667, subdivision (e), because the juvenile court made no express finding that he was a “fit and proper subject” as required by section 667, subdivision (d)(3)(C).

1. Juvenile Adjudication Considerations

 An order adjudging a minor to be a ward of the juvenile court ordinarily is not deemed to be a criminal conviction for any purpose and juvenile court proceedings are not deemed to be criminal proceedings.   (Welf. & Inst.Code, § 203.)   For example, “․ only felony convictions can be used to impeach a witness.  (Evid.Code, § 788.)   A juvenile court adjudication is not considered a conviction and cannot be used to impeach.   [Citations.]”  (In re Ricky B. (1978) 82 Cal.App.3d 106, 114, fn. 2, 146 Cal.Rptr. 828;  see also People v. Jackson (1980) 28 Cal.3d 264, 311, 168 Cal.Rptr. 603, 618 P.2d 149.)   Therefore, absent special legislative provision a juvenile adjudication would not be a prior serious felony conviction for purposes of the three strikes law.   However, section 667, subdivision (d) makes an exception to this rule by stating:

“Notwithstanding any other law and for the purposes of subdivisions (b) to (i), inclusive, a prior conviction of a felony shall be defined as:

“(3) A prior juvenile adjudication [under certain circumstances]․”  (Italics added.)

The three strikes law has therefore created a significant exception to the rule that a juvenile adjudication is not a criminal conviction.

Juvenile court proceedings have been established to hear and decide charges against minors who are alleged to have committed criminal offenses and to determine whether the minor should be adjudged a ward of the court.   (Welf. & Inst.Code, § 602.)5  A minor is tried in juvenile court rather than criminal court unless the juvenile court, in response to a petition filed pursuant to Welfare and Institutions Code section 707 (W & I section 707), finds the minor is not a “fit and proper subject” to remain within the jurisdiction of the juvenile court.   An express finding of fitness is made only in response to a petition filed under W & I section 707, which states in part:

“(a) In any case in which a minor is alleged to be a person described in Section 602 by reason of the violation, when he or she was 16 years of age or older, of any criminal statute or ordinance except those listed in subdivision (b), upon motion of the petitioner made prior to the attachment of jeopardy the court shall cause the probation officer to investigate and submit a report on the behavioral patterns and social history of the minor being considered for a determination of unfitness.   Following submission and consideration of the report, and of any other relevant evidence which the petitioner or the minor may wish to submit, the juvenile court may find that the minor is not a fit and proper subject to be dealt with under the juvenile court law․

“․

“(b) Subdivision (c) shall be applicable in any case in which a minor is alleged to be a person described in Section 602 by reason of the violation, when he or she was 16 years of age or older, of one of the following offenses:

“․

“(16) Any offense described in Section 1203.09 of the Penal Code [e.g., residential burglary].

“․

“(c) With regard to a minor alleged to be a person described in Section 602 by reason of the violation, when he or she was 16 years of age or older, of any of the offenses listed in subdivision (b), upon motion of the petitioner made prior to the attachment of jeopardy the court shall cause the probation officer to investigate and submit a report on the behavioral patterns and social history of the minor being considered for a determination of unfitness.   Following submission and consideration of the report, and of any other relevant evidence which the petitioner or the minor may wish to submit the minor shall be presumed to be not a fit and proper subject to be dealt with under the juvenile court law unless the juvenile court concludes, based upon evidence, which evidence may be of extenuating or mitigating circumstances, that the minor would be amenable to the care, treatment, and training program available through the facilities of the juvenile court based upon an evaluation of each of the following criteria:

“(1) The degree of criminal sophistication exhibited by the minor.

“(2) Whether the minor can be rehabilitated prior to the expiration of the juvenile court's jurisdiction.

“(3) The minor's previous delinquent history.

“(4) Success of previous attempts by the juvenile court to rehabilitate the minor.

“(5) The circumstances and gravity of the offenses alleged in the petition to have been committed by the minor.

“A determination that the minor is a fit and proper subject to be dealt with under the juvenile court law shall be based on a finding of amenability after consideration of the criteria set forth above, and findings therefor recited in the order as to each of the above criteria that the minor is fit and proper under each and every one of the above criteria.   In making a finding of fitness, the court may consider extenuating or mitigating circumstances in evaluating each of the above criteria.   In any case in which a hearing has been noticed pursuant to this section, the court shall postpone the taking of a plea to the petition until the conclusion of the fitness hearing and no plea which may already have been entered shall constitute evidence at the hearing.”  6  (Italics added.)

It is generally the prosecutor (i.e., the petitioner) who moves for a fitness hearing.   We note, however, that cases have also held that the juvenile court may move for fitness hearings on the court's own motion (Green v. Municipal Court (1976) 67 Cal.App.3d 794, 803, 136 Cal.Rptr. 710), and adults who are subject to juvenile court petitions filed pursuant to Welfare and Institutions Code section 602 may move for a fitness hearing.  (Joey W. v. Superior Court (1992) 7 Cal.App.4th 1167, 1171–1173, 9 Cal.Rptr.2d 486;  In re Rodney F. (1988) 203 Cal.App.3d 177, 183–186, 249 Cal.Rptr. 424.)   The prosecutor in moving for a fitness hearing typically is seeking to have the minor found to be unfit for juvenile court proceedings and, as a result, tried in criminal court.   The prosecutor generally files a W & I section 707 motion only in those cases determined by the prosecutor to be so egregious that the minor should be treated as an adult in criminal proceedings.

On filing a W & I section 707 petition alleging a residential burglary, the provisions of W & I section 707, subdivision (c) apply, thereby requiring the juvenile court to consider the probation officer's report and other relevant evidence.   The minor is presumed “unfit” unless the court finds him “fit” under each of the five listed criteria.   In People v. Superior Court (Zaharias M.) (1993) 21 Cal.App.4th 302, 306, 25 Cal.Rptr.2d 838, the court stated:  “In order for the juvenile court to find a juvenile ․ fit, it must recite in its order findings as to each and every one of the five criteria” and “the court must state the reasons, supported by the evidence, for its findings.”   Another court has stated:

“The findings required by [Welfare and Institutions Code] section 707 are a mandatory precondition to a determination of amenability.   To dispel the statutory presumption of unfitness impressed upon the minor by section 707, [subdivision (c),] the trial court can proceed in but one way:  a finding of amenability must be based on evidence and supported by findings ‘recited in the order’ addressed ‘to each and every one of the [five enumerated] criteria’ set forth in section 707.   Absent substantial compliance with the statute, the presumption of unfitness subsists and a finding of amenability contrary thereto is unauthorized by law, invalid and therefore in excess of the trial court's jurisdiction.  [Citation.]”  (People v. Superior Court (James B.) (1981) 122 Cal.App.3d 263, 267, 175 Cal.Rptr. 733.)

Thus, case law requires a juvenile court to state specific findings regarding a minor's amenability and fitness, along with reasons for the findings, in order to make an express finding the minor is “․ a fit and proper subject to be dealt with under the juvenile court law.” (§ 667, subd. (d)(3)(C).)

There are, therefore, significant differences between the proceedings necessary to obtain an express finding of fitness and those which result in an implied finding of fitness:  the former requires that a W & I section 707 petition be filed and that an extensive evaluation of the minor be conducted with specific findings supporting the evaluation;  the latter requires only that the person be a minor.   Because section 667, subdivision (d) converts an otherwise noncriminal juvenile adjudication into a felony conviction, we do not think the Legislature intended to include all juvenile adjudications of serious offenses to be “strikes.”   Rather, we conclude that by including express reference to a finding of fitness in section 667, subdivision (d)(3)(C) the Legislature intended that to be treated as a prior strike within the three strikes law the juvenile offense must be an offense which the prosecutor or court considers so egregious as to warrant (1) the filing of a W & I section 707 petition and (2) the evaluation of the minor with supporting findings.   It follows that section 667, subdivision (d)(3)(C) requires an express finding of fitness.   The record in this case contains no evidence that a W & I section 707 petition was filed, that a fitness hearing was held or that the juvenile court made an express finding of fitness.7

2. Express Provision

 If an express finding were not required there would be no reason to include the section 667, subdivision (d)(3)(C) requirement because the implied finding would automatically be made in every juvenile adjudication.   As discussed above, absent a fitness hearing the juvenile court makes no fitness finding, and juvenile court proceedings continue with the assumption that the minor is a fit and proper subject.   We cannot presume the Legislature engages in idle acts and, accordingly, we must attempt to give effect to each statutory provision it enacts.  “It is fundamental that every word in the statute must be given meaning and effect if at all possible.  [Citations.]”  (People v. Espinoza (1979) 99 Cal.App.3d 59, 72, 159 Cal.Rptr. 894.)   Further, we cannot discard an express statutory requirement merely because we could consider it unnecessary or mere surplusage.  “ ‘A cardinal rule of construction is that ․ a construction making some words surplusage is to be avoided.’  [Citation.]”  (People v. Gilbert (1969) 1 Cal.3d 475, 480, 82 Cal.Rptr. 724, 462 P.2d 580.)   We must presume the Legislature was aware that fitness findings are made by a juvenile court only following fitness hearings conducted pursuant to Welfare and Institutions Code section 707.   The clear statutory language of section 667, subdivision (d)(3)(C) requires a finding of fitness.   One authority states:

“The primary source of the legislative intent and purpose is in the words used;  if these are clear the court should not seek hidden motives or objects which do not appear on the face of the statute or from its legislative history.  [Citations.]”  (1 Witkin & Epstein, Cal.Criminal Law (2d ed.   1988) Introduction to Crimes, § 25, p. 33.)

Thus, by including the section 667, subdivision (d)(3)(C) language, the Legislature must have intended the requirement could be satisfied only by an express finding of fitness.   The implied finding argument makes the inclusion of the section 667, subdivision (d)(3)(C) requirement mere surplusage.

3. Construction in Favor of Offender

 To the extent the language of a statute (e.g., § 667, subd. (d)(3)(C)) is ambiguous and reasonably susceptible to two interpretations (e.g., whether an implied finding of fitness does or does not suffice), “ ‘ “that construction which is more favorable to the offender will be adopted.” ’  [Citations.]”  (In re Christian S. (1994) 7 Cal.4th 768, 780, 30 Cal.Rptr.2d 33, 872 P.2d 574.)   Applying these rules of statutory construction, we conclude the language of section 667, subdivision (d)(3)(C) must be interpreted to require an express finding of fitness, and no underlying legislative purpose compels a contrary conclusion.   Although the People note the stated purpose of the three strikes law is “to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses” (§ 667, subd. (b)), our interpretation of section 667, subdivision (d)(3)(C) does not detract from that stated purpose.   Rather, it affirms greater punishment for those persons who commit offenses which meet the Legislature's definition of prior “serious and/or violent felony” convictions (§ 667, subd. (b)), which definition includes juvenile adjudications provided that the adjudications satisfy certain requirements.

4. Analogous Requirements of Express Finding

 Requiring an express finding of fitness for application of section 667, subdivision (d)(3)(C) is also consistent with other areas of the law requiring express findings.   For instance, when a trial court fails to explain its findings in a statement of decision requested pursuant to Code of Civil Procedure section 632, “reversal is required.”   (Miramar Hotel Corp. v. Frank B. Hall & Co. (1985) 163 Cal.App.3d 1126, 1129, 210 Cal.Rptr. 114.)   Also, section 1385 allows a court to dismiss certain actions “in furtherance of justice” although “[t]he reasons for the dismissal must be set forth in an order entered upon the minutes,” and the “[f]ailure to state the reasons in the [court's] minutes renders a dismissal under section 1385 invalid.”  (People v. Superior Court (Flores) (1989) 214 Cal.App.3d 127, 135–136, 262 Cal.Rptr. 576.)   Also, the failure of a court or jury to make a specific finding on an allegation of a prior conviction results in a finding in favor of the defendant. (§ 1158;  In re Hall (1927) 88 Cal.App. 212, 214, 263 P. 295;  People v. Garcia (1970) 4 Cal.App.3d 904, 907, fn. 2, 6, 84 Cal.Rptr. 624 Witkin & Epstein, supra, at § 3031, p. 3748.)   Similarly, section 1167 provides:

“When a jury trial is waived, the judge or justice before whom the trial is had shall, at the conclusion thereof, announce his findings upon the issues of fact, which shall be in substantially the form prescribed for the general verdict of a jury and shall be entered upon the minutes.”

A failure of a court to make the required findings pursuant to section 1167 is prejudicial error.  (People v. Blackburn (1968) 261 Cal.App.2d 554, 559–560, 67 Cal.Rptr. 918.)   Similarly, section 1170, subdivision (c) provides that a “court shall state the reasons for its sentence choice on the record at the time of sentencing.”   A failure by the court to expressly state its reasons is generally reversible error requiring remand (assuming a timely objection and prejudicial effect).  (See, e.g., People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311, 28 Cal.Rptr.2d 172;  People v. Sanchez (1994) 23 Cal.App.4th 1680, 1684–1685, 1688, 29 Cal.Rptr.2d 367;  People v. Dixon (1993) 20 Cal.App.4th 1029, 1037, 1039, 25 Cal.Rptr.2d 208;  People v. Belmontes (1983) 34 Cal.3d 335, 347–349, 193 Cal.Rptr. 882, 667 P.2d 686;  People v. Stone (1981) 117 Cal.App.3d 15, 20–22, 172 Cal.Rptr. 445;  People v. Bejarano (1981) 114 Cal.App.3d 693, 704, 708, 173 Cal.Rptr. 71.)   Accordingly, our conclusion that an express finding by the juvenile court that Renko was a fit and proper subject is necessary to satisfy the section 667, subdivision (d)(3)(C) requirement is not contrary to but is supported by analogous law.

D

Renko also argues the prior juvenile adjudication cannot be used as prior “strike” because juvenile adjudications are made without the right to a jury trial.   Because our disposition of this case is based solely on our interpretation of the statutory language of section 667, subdivision (d)(3), we need not address the question of whether the denial of the right to a jury trial precludes application of section 667, subdivision (d)(3) to a prior juvenile adjudication.

Further, we do not resolve the apparent conflict between section 667, subdivisions (b)-(i), adopted by the Legislature, and section 1170.12, subsequently adopted by California voters on November 8, 1994, in Proposition 184.8  We note that the language of section 1170.12 arguably omits juvenile adjudications from its definition of “prior felony convictions” for purposes of finding a “third strike.”   Section 1170.12, subdivision (c)(2)(A) states in part:

“If a defendant has two or more prior felony convictions, as defined in paragraph (1) of subdivision (b), that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment․”  (Italics added.)

Section 1170.12, subdivision (b)(1) defines prior felony convictions as those violent or serious felony convictions defined under, respectively, section 667.5, subdivision (c) or section 1192.7, subdivision (c), and does not include juvenile adjudications.   Only section 1170.12, subdivision (b)(3) includes juvenile adjudications as prior felony convictions for purposes of the three strikes law.   Because we have determined on other grounds that Renko's prior juvenile adjudications cannot be used as prior “strikes,” it is unnecessary, and we decline, to decide or comment on whether this difference in statutory language between section 667 and section 1170.12 precludes the use of prior juvenile adjudications in sentencing a defendant for a “third strike.”

III

Because our disposition requires resentencing, we need not address Renko's contention that his sentence constituted cruel and unusual punishment.   Renko also contends:  (1) the three strikes law does not apply because his prior convictions were not determined to be “strikes” at the time of the convictions;  and (2) the three strikes law is unconstitutionally vague and failed to give him adequate notice regarding the specific punishment to be imposed.   Both of these contentions have been rejected by reasoned opinions and we determine there is no reason to depart from those opinions.  (See People v. Reed (1995) 33 Cal.App.4th 1608, 1610–1612, 40 Cal.Rptr.2d 47 [pre-enactment prior strike];  People v. Sipe (1995) 36 Cal.App.4th 468, 476–483, 42 Cal.Rptr.2d 266 [pre-enactment prior strike/vagueness].)

IV

Because we remand this case for resentencing we note that the trial court must consider the applicability of section 667, subdivision (a)(1) and whether, as it appears, a five-year additional sentence must be imposed.  (See People v. Ramirez (1995) 33 Cal.App.4th 559, 573–574, 39 Cal.Rptr.2d 374;  People v. Anderson (1995) 35 Cal.App.4th 587, 592–594, 41 Cal.Rptr.2d 474.)   We also note that the record does not show whether a sentence was imposed and stayed, or whether imposition of sentence was stayed, on Renko's conviction of resisting arrest (§ 148), or what disposition was made with regard to the finding of the prison prior.   Disposition of the conviction and finding should be made upon resentencing.

DISPOSITION

The convictions are affirmed, but the sentence imposed is reversed and the matter is remanded for resentencing consistent with this opinion.

FOOTNOTES

2.   All statutory references are to the Penal Code unless otherwise specified.

3.   The court found true the third count charging resisting a police officer (§ 148) for which Renko had waived a jury trial.

4.   At trial Lisa DiMeo, a field evidence technician with the San Diego County Sheriff's Department, testified as an expert that photographs of the shoe print found at Duhaime's house were consistent with Renko's shoes, although she could not opine the print was actually made by Renko's shoes.   Also, Detective Christopher Serritella had compared the shoe print with one of Renko's shoes at the scene and testified that it was his lay opinion that they had the same general characteristics.

FOOTNOTE.   See footnote 1, ante.

5.   Welfare and Institutions Code section 602 provides in part:  “Any person who is under the age of 18 years when he violates any law of this state or of the United States ․ is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court.”

6.   Section 1203.09, subdivision (b) states in part:  “Subdivision (a) applies to the following crimes:  ․ (5) Burglary of the first degree, as defined in Section 460․”  Section 460 defines all burglaries “of an inhabited dwelling house” [i.e., a residence] to be burglary of the first degree.

7.   We do not, however, imply that a fitness hearing and findings of fitness were required for the juvenile court to proceed properly pursuant to juvenile court law.   Absent any motion for a fitness hearing, Renko's juvenile adjudications by the juvenile court were not in excess of its jurisdiction or otherwise improper.

8.   Renko's offenses were committed before this date, although Renko was convicted and sentenced after this date.

McDONALD, Associate Justice.

KREMER, P.J., and WORK, J., concur.