PEOPLE v. BLACK

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Court of Appeal, First District, Division 3, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Jeffrey David BLACK, Defendant and Appellant.

Cr. 20962.

Decided: June 25, 1981

Alex Reisman, San Francisco, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., William Stein, Ina Levin Gyemant, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Jeffrey David Black, convicted of a criminal offense committed when he was under the age of 18, contends that the superior court erred when it sentenced him to state prison without first referring him to the California Youth Authority (CYA) for a diagnostic evaluation and report pursuant to Welfare and Institutions Code section 707.2.1

The Facts

There is no dispute as to the relevant facts.

On January 15, 1980, as a result of a plea bargain, appellant pleaded nolo contendere to one count of false imprisonment (Pen.Code, s 236) and to one count of assault with a deadly weapon (Pen.Code, s 245, subd. (a)). A Penal Code section 12022, subdivision (b) enhancement alleged in connection with the Penal Code section 245, subdivision (a) charge was admitted by appellant. The plea bargain contemplated that the sentence on the two counts would run concurrently with a maximum sentence of five years' imprisonment. The case was referred to the probation office and imposition of sentence was set for February 15, 1980.

The case was then put on calendar for January 25, 1980, because the district attorney apparently had awakened to the realization that the Penal Code section 12022, subdivision (b) allegation could not be used to enhance the sentence to be imposed on the assault with a deadly weapon charge. A new plea bargain was entered into on that date with appellant whereby appellant would be sentenced consecutively on the two counts and the Penal Code section 12022, subdivision (b) allegation would be dismissed. In the course of that proceeding on January 25, 1980, the sentencing date of February 15, 1980 was vacated and sentencing was continued, without objection by appellant, to February 22, 1980, upon the district attorney's representation that the probation officer would not have time otherwise to prepare a report because the probation office had not yet received the district attorney's file on the case.

As fate would have it, appellant was 17 when he pleaded, 17 on the first sentencing date of February 15, 1980, and turned 18 on February 19, 1980.

On February 22, 1980, appellant was sentenced to state prison for five years. Appellant's counsel had asked that appellant be remanded to the California Youth Authority (CYA) for evaluation and report pursuant to section 707.2. The trial judge held that in light of People v. Jones (1979) 98 Cal.App.3d 694, 159 Cal.Rptr. 641, he was not obligated under section 707.2 to secure a CYA report before sentencing appellant to state prison.

Section 707.2 provides:

Prior to sentence, the court of criminal jurisdiction may remand the minor to the custody of the California Youth Authority for not to exceed 90 days for the purpose of evaluation and report concerning his amenability to training and treatment offered by the Youth Authority. No minor who was under the age of 18 years when he committed any criminal offense and who has been found not a fit and proper subject to be dealt with under the juvenile court law shall be sentenced to the state prison unless he has first been remanded to the custody of the California Youth Authority for evaluation and report pursuant to this section and the court finds after having read and considered the report submitted by the Youth Authority that the minor is not a suitable subject for commitment to the Youth Authority.

Jones held that “the first clause of the second sentence of section 707.2 is tautological. As used in the section, the word ‘minor’ necessarily refers to one under age 18 (Civ.Code, s 25.1). The question is thus presented whether the provision applies to one who, when he appears for sentencing, is a minor or to one who, though an adult when he appears for sentencing, is before the court for a crime committed as a minor. We think the first suggested interpretation is the correct one and that the intent of the Legislature was to prohibit the commitment of minors to state prison without a preliminary Youth Authority evaluation.” (98 Cal.App.3d at p. 699, 159 Cal.Rptr. 641.)2

Thus, the Jones court reads the second sentence of section 707.2 as though it read No person under the age of 18 who was under the age of 18 years when he committed any criminal offense shall be sentenced to the state prison unless․ Because we do not dwell in the realm of the White Queen,3 if the defendant is under the age of 18 when he is being sentenced, a fortiori he was under the age of 18 when he committed the crime for which he is being sentenced. In that reading, “the first clause of the second sentence is tautological.” (Id., at p. 699, 159 Cal.Rptr. 641.)

We agree with Jones that the clause in question is a pleonasm. We disagree, however, with the Jones definition of the word “minor” as it is used in section 707.2. We believe that in the context of section 707.2, “minor” means a person who committed a criminal offense while under the age of 18.4 We explain.

Section 602, captioned “Minors violating laws defining crime; ․“ provides:

Any person who is under the age of 18 years when he violates any law of this state or of the United States or any ordinance of any city or county of this state defining crime other than an ordinance establishing a curfew based solely on age, is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court.

Section 603 provides:

No court shall have jurisdiction to conduct a preliminary examination or to try the case of any person upon an accusatory pleading charging such person with the commission of a public offense or crime when such person was under the age of 18 years at the time of the alleged commission thereof unless the matter has first been submitted to the juvenile court by petition as provided in Article 7 (commencing with Section 650), and said juvenile court has made an order directing that such person be prosecuted under the general law.

Section 604 provides:

(a) Whenever a case is before any court upon an accusatory pleading and it is suggested or appears to the judge before whom such person is brought that the person charged was, at the date the offense is alleged to have been committed, under the age of 18 years, such judge shall immediately suspend all proceedings against such person on such charge; he shall examine into the age of such person, and if, from such examination, it appears to his satisfaction that such person was at the date the offense is alleged to have been committed under the age of 18 years, he shall forthwith certify to the juvenile court of his county:

(1) That such person (naming him) is charged with such crime (briefly stating its nature);

(2) That such person appears to have been under the age of 18 years at the date the offense is alleged to have been committed, giving date of birth when known;

(3) That proceedings have been suspended against such person on such charge by reason of his age, with the date of such suspension.

To such certification, the judge shall attach a copy of the accusatory pleading

(b) When a court certifies a case to the juvenile court pursuant to subdivision (a), it shall be deemed that jeopardy has not attached by reason of the proceedings prior to certification, but the court may not resume proceedings in the case, nor may a new proceeding under the general law be commenced in any court with respect to the same matter unless the juvenile court has found that the minor is not a fit subject for consideration under the Juvenile Court Law and has ordered that proceedings under the general law resume or be commenced.

(c) The certification and accusatory pleading shall be promptly transmitted to the clerk of the juvenile court. Upon receipt thereof, the clerk of the juvenile court shall immediately notify the probation officer who shall immediately proceed in accordance with Article 16 (commencing with Section 650) to cause the filing of a petition pursuant to Section 656, except that such petition need not be verified.

In none of the sections enumerated above has the Legislature made the date of arrest, complaint, arraignment, or trial determinative of “minor” status but, rather, it has made age, at the time of commission of the offense, the touchstone of minority status.

Thus it seems apparent that the Legislature, at least insofar as the interplay of sections 602, 603 and 604 and the general criminal law is concerned, has used the word “minor” to mean a person who committed a crime while under the age of 18.

Section 707.1, we believe, further supports our view:

If the minor is declared not a fit and proper subject to be dealt with under the juvenile court law, the district attorney or other appropriate prosecuting officer shall acquire the authority to file an accusatory pleading against the minor in a court of criminal jurisdiction. The case shall proceed from that point according to the laws applicable to a criminal case provided, that unless the juvenile court specifically orders the individual minor delivered to the custody of the sheriff upon a finding that the presence of the minor in the juvenile hall would endanger the safety of the public or be detrimental to the other inmates detained in juvenile hall, the minor, if detained, shall remain in the juvenile hall pending final disposition by the criminal court. If a prosecution has been commenced in another court but has been suspended while juvenile court proceedings are being held, it shall be ordered that the proceedings upon such prosecution resume. When a person under 18 years of age is detained pursuant to this section in a facility in which adults are confined, it shall be unlawful to permit such person to come or remain in contact with such adults.

The Legislature, in enacting section 707.1, must have contemplated that there would be “minors,” i. e., those who committed crimes while under the age of 18, some of whom would be over the age of 18, and some of whom would be under 18, while incarcerated pending final disposition in criminal court. If the court decided that the “minor” should be in jail rather than in juvenile hall, the section requires that those who were under the age of 18 at the time of confinement, may not be permitted “to come or remain in contact” with adults confined in the same facility. Here, the Legislature has specifically distinguished between a “minor” confined in a facility other than juvenile hall pending final determination of his criminal case and a person under the age of 18 so confined. If “minor” means a person under the age of 18 in this context, then we have the same Jones “tautology.”

Further, the first sentence of section 707.2 speaks to a discretionary remand by the sentencing criminal court to CYA for an evaluation and report of the “minor” prior to sentencing. Obviously, the word “minor” in the first sentence of section 707.2 has the same meaning as it has in the second sentence of section 707.2. Appellant was eligible for a direct commitment to CYA by virtue of section 1731.5 without a prior evaluation and report. Then, if Jones is correct, the sentencing court here could have committed appellant directly to CYA without a prior CYA evaluation but could not have obtained such an evaluation under section 707.2 prior to sentence in order to determine whether appellant should be committed to CYA for the reason that appellant was 18 at the time of sentence. We do not believe the Legislature intended such an anomalous result when it enacted section 707.2.

Finally, granting an ambiguity in section 707.2 as to whether it applies to a person under the age of 18 at sentencing or to a person who was under the age of 18 when the crime was committed, “(i)t is, of course, an established principle that ambiguities in penal statutes must be construed in favor of the offender, not the prosecution.” (In re Jeanice D., supra, 28 Cal.3d 210, 217, 168 Cal.Rptr. 455, 617 P.2d 1087.)

Accordingly, harmonizing section 707.2 with the general court law, we hold that a person eligible for commitment to CYA under section 1731.5 for a crime perpetrated when he was under the age of 18, cannot be sentenced to state prison without being first committed to CYA for the evaluation and report mandated by section 707.2.5

In light of our resolution of the meaning of section 702, we need not, and do not, reach the other contentions raised by appellant.

The trial court is directed to recall appellant from state prison, refer him to CYA for evaluation and report, and thereafter determine the appropriate disposition of the case pursuant to the provisions of section 707.2.

FOOTNOTES

1.  All section references are to the Welfare and Institutions Code unless otherwise noted.

2.  We are perplexed as to why the Jones court relied on Civil Code section 25.1. That section provides in relevant part: “The Legislature intends that any use of or reference to the words ‘age of majority,’ ‘age of minority,’ ‘adult,’ ‘minor,’ or words of similar intent in any instrument, order, transfer, or governmental communication whatsoever made in this state: ” (P ) (b) On or after March 4, 1972, shall make reference to persons 18 years and older, or younger than 18 years of age.” (Emphasis added.) It does not seem to us that a code section, here, section 707.2, is an “instrument, order, transfer, or governmental communication” within the meaning of Civil Code section 25.1.Perhaps a better rationale for Jones lies in Civil Code section 25, which provides, “Minors are all persons under 18 years of age” and Civil Code section 27, which provides, “All other persons are adults.”

3.  “What sort of things do you remember best?” Alice ventured to ask.“Oh, things that happened the week after next,” the Queen replied in a careless tone. “For instance, now,” she went on, sticking a large piece of plaster on her finger as she spoke, “there's the King's Messenger. He's in prison now, being punished: and the trial doesn't even begin till next Wednesday: and of course the crime comes last of all.”“Suppose he never commits the crime?” said Alice.“That would be all the better, wouldn't it?” the Queen said ․ (Carroll, Through the Looking Glass (1962 ed.) pp. 100-101.)

4.  While Jones is, so far as we know, the only case squarely in point, we note that the dissenting opinion in In re Jeanice D. (1980) 28 Cal.3d 210, 168 Cal.Rptr. 455, 617 P.2d 1087, states that “Welfare and Institutions Code section 707.2 mandates that a person convicted as an adult for an offense committed while he was under 18 years of age shall not be sentenced to ‘state prison unless he has first been remanded to the custody of the California Youth Authority for evaluation and report․’ ” (At p. 224, 168 Cal.Rptr. 455, 617 P.2d 1087, emphasis added.) The dissent has taken a simple, direct approach by substituting, in effect, the word “person” for the word “minor” as it appears in the second sentence of section 707.2, thus, avoiding any “tautology.” It is, of course, a basic principle of statutory construction that a court should avoid an interpretation that makes some word or words of the statute surplusage. (State of South Dakota v. Brown (1978) 20 Cal.3d 765, 776-777, 144 Cal.Rptr. 758, 576 P.2d 473; People v. Gilbert (1969) 1 Cal.3d 475, 480, 82 Cal.Rptr. 724, 462 P.2d 580.) We reach the same result but by a different and more circuitous route.

5.  Jones speaks of the “absurd” result if a defendant who committed a crime while under 18, was over 21 when apprehended and therefore not eligible for CYA commitment under section 1731.5, must nevertheless be referred to CYA for evaluation and report prior to a sentence to state prison. There are several answers thereto.First, in the case at bench, as it appears to have been the case in Jones, appellant was eligible for commitment to CYA under section 1731.5, thus, “we have no occasion in the instant case to determine whether section 707.2 additionally requires a trial court to remand for a diagnostic evaluation those minors who come within section 707.2's literal terms but who are statutorily ineligible for CYA commitment.” (In re Jeanice D., supra, 28 Cal.3d at p. 214, 168 Cal.Rptr. 455, 617 P.2d 1087.)Second, it would seem to be no more absurd than requiring a person over 21 years of age, when arrested for a crime committed when he was under 18, to appear in juvenile court pursuant to sections 602, 603 and 604 and there to be certified to the criminal court for prosecution. (See Rucker v. People (1977) 75 Cal.App.3d 197, 200, 141 Cal.Rptr. 900.)

FEINBERG, Associate Justice.

WHITE, P. J., and BARRY-DEAL, J., concur.