PEOPLE v. VENEGAS

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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Jesus Thomas VENEGAS, Defendant and Appellant.

No. H014577.

Decided: July 31, 1996

JoLi M. Schunk, Santa Clara (Under appointment by the Court of Appeal, in association with the Sixth District Appellate Program), for Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Sr. Assistant Attorney General, Stan M. Helfman and Sharon G. Birenbaum, Deputy Attorneys General, for Respondent.

After a court trial, appellant was found guilty of violating Penal Code section 12021, subdivision (e).   This subdivision makes it a crime for certain juveniles to possess a firearm until the age of 30.   Appellant contends that this section does not apply to him, that this section violates his right to equal protection and that application of this section to him denies him the substantive protections guaranteed to him by the due process clause.   We agree with appellant's first contention and reverse.

Penal Code section 12021 is commonly known as prohibiting convicted felons from possessing firearms.   In 1990, the Legislature added subdivision (e), and it is the applicability of the second clause of subdivision (e) to appellant that is the dispositive issue in this case.  Section 12021, subdivision (e) provides:  “Any person who (1) is alleged to have committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code, an offense described in subdivision (b) of Section 1203.073, or any offense enumerated in paragraph (1) of subdivision (c), (2) is found to be a fit and proper subject to be dealt with under the juvenile court law, and (3) is subsequently 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, an offense described in subdivision (b) of Section 1203.073, or any offense enumerated in paragraph (1) of subdivision (c) shall not own, or have in his or her possession or under his or her custody or control, any firearm until the age of 30 years.   A violation of this subdivision shall be punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine.   The juvenile court, on forms prescribed by the Department of Justice, shall notify the department of persons subject to this subdivision.   Notwithstanding any other law, the forms required to be submitted to the department pursuant to this subdivision may be used to determine eligibility to acquire a firearm.”

In September of 1994, appellant, who was then 18 years old, was in possession of a .357 revolver.   Previously, when he was 17 years old, he was the subject of a juvenile adjudication for aggravated assault (Pen.Code, § 245, subd. (a)(1)) and was adjudged to be a ward of the juvenile court within the meaning of section 602 of the Welfare and Institutions Code. There is no record, however, of a formal fitness hearing pursuant to Welfare and Institutions Code section 707 at which the trial court found appellant fit to be dealt with in juvenile court.   Thus, section 12021, subdivision (e) applies to appellant only if clause (2), requiring that he have been “found a fit and proper subject to be dealt with under the juvenile court law” can be interpreted to encompass an implied finding of fitness at his juvenile adjudication.   Appellant contends that his conviction pursuant to this section must be reversed because the juvenile court did not expressly find him to be fit to be dealt with under the juvenile court law.

Welfare and Institutions Code section 606 states:  “When a petition has been filed in a juvenile court, the minor who is the subject of the petition shall not thereafter be subject to criminal prosecution based on the facts giving rise to the petition unless the juvenile court finds that the minor is not a fit and proper subject to be dealt with under this chapter and orders that criminal proceedings be resumed or instituted against him.”

The procedure for holding a fitness hearing is described in Welfare and Institutions Code section 707.   That section provides 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 if it concludes that the minor would not be amenable to the care, treatment, and training program available through the facilities of the juvenile court, based upon an evaluation 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 offense alleged in the petition to have been committed by the minor.”

“A determination that the minor is not a fit and proper subject to be dealt with under the juvenile court law may be based on any one or a combination of the factors set forth above, which shall be recited in the order of unfitness.   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.”

Subdivision (c) of section 707 provides for a fitness hearing for any minor between the ages of 16 and 18 who is alleged to have committed any of the very serious offenses listed in subdivision (b) of section 707.   If a fitness hearing is requested, the minor is presumed to be unfit for juvenile court.   Subdivision (d) provides for a similar procedure for a fitness hearing for a minor between the age of 14 and 16 accused of enumerated serious offenses and subdivision (e) describes the procedure for a minor in the same age range accused of certain types of murder.

 Keeping this complex and detailed procedure for a fitness determination in mind, we look to the language of Penal Code section 12021, subdivision (e) “to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted․”  (Code Civ. Proc., § 1858.)  “Significance should be given, if possible, ‘to every word ․ of an act.’ ”  (Mercer v. Perez (1968) 68 Cal.2d 104, 112, 65 Cal.Rptr. 315, 436 P.2d 315) Conversely, a construction that renders a word surplusage should be avoided.  (City and County of San Francisco v. Farrell (1982) 32 Cal.3d 47, 54, 184 Cal.Rptr. 713, 648 P.2d 935;  California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 844, 157 Cal.Rptr. 676, 598 P.2d 836.)

Subsection (2) of subdivision (e) of section 12021 can only be given meaning when interpreted with Welfare and Institutions Code section 707.   The plain language of the statute indicates that there must be a fitness finding and, because of the use of the word “subsequently” in subsection (3), that finding is not contemporaneous with the juvenile court adjudication of wardship.  “Subsequently” indicates that the fitness finding in subsection (2) precede the wardship determination in subsection (3).

 Respondent argues that the requirement of a fitness finding described in subsection (2) is satisfied by the implied finding of fitness, rather than an explicit finding made pursuant to section 707.   Respondent's position is that an implied fitness finding can be read into any adverse juvenile adjudication, and proving an adverse juvenile adjudication for subsection (3) necessarily supplies the finding required by subsection (2).   The problem with this position is that it deprives subsection (2) of any meaning.   This “construction ․ renders [subsection (2) ] surplusage [and] should be avoided.”  (Delaney v. Superior Court (1990) 50 Cal.3d 785, 798–799, 268 Cal.Rptr. 753, 789 P.2d 934.)

Respondent contends that this construction limits application of the statute to persons who were between 16 and 18 years old when adjudged a ward of the court for the commission of the specified offense and who had a formal fitness hearing culminating in an explicit finding.1  The Department of Justice “Juvenile Court Report of Firearm Prohibition” form does not express these limits.   However, nothing in the materials provided concerning the history and enforcement of this statute would lead us to conclude that it would be appropriate to discard a significant portion of the statute.

Respondent argues that these limits on the statute's application would be of “questionable constitutionality.   It would create two classes of individuals similarly situated but treated differently:  i.e. persons with violent juvenile offenses who were between 16 and 18 years old who had a formal fitness hearing, and violent juvenile offenders between the ages of 16 and 18 years old who committed the same offenses but did not have a formal fitness hearing.”   Appellant has made an equal protection argument based on respondent's suggested interpretation of the statute as well.   He observes that under respondent's interpretation of the statute “[t]hose adjudged to be wards of the court in California are treated differently than those individuals with a similar history of delinquency in other states.”   Because we hold the statute does not apply to appellant, we intimate no opinion as to the appropriate resolution of these issues.

In conclusion, there are significant differences between the proceedings necessary to obtain an express finding of fitness and those which result in an implied finding of fitness:  an express finding requires that a Welfare and Institutions Code section 707 petition be filed and that an extensive evaluation of the minor be conducted with specific findings supporting the evaluation;  an implied finding requires only that the person be a minor.   We conclude that by including express reference to a finding of fitness in section 12021, subdivision (e) the Legislature intended that the prior juvenile offense must be one which the prosecutor or court considered so egregious as to warrant the filing of a Welfare and Institutions Code section 707 petition and the evaluation of the minor with supporting findings.

Because no juvenile court has expressly found appellant to be a fit and proper subject to be dealt with under juvenile court law, Penal Code section 12021, subdivision (e) does not apply to him.

Accordingly, the judgment is reversed.

FOOTNOTES

1.   We note that since the enactment of Penal Code section 12021, subdivision (e), subdivisions (d) and (e) of section 707 also subject minors between 14 and 16 to fitness determinations.

ELIA, Associate Justice.

PREMO, Acting P.J., and WUNDERLICH, J., concur.