IN RE: JOE C.

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Court of Appeal, Fifth District, California.

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

Civ. 6671.

Decided: July 26, 1982

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Eric J. Coffill, Deputy State Public Defender, Sacramento, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Willard F. Jones and Garrick W. Chock, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

On February 24, 1980, appellant shot and killed one Jorge Garcia.   Thereafter, a petition was filed in Kern County Juvenile Court pursuant to Welfare and Institutions Code section 602 alleging in count I violation of Penal Code section 187 (murder).   Count I further alleged that appellant was armed with a deadly weapon, a firearm, during the commission of the offense.  (Pen.Code, § 12022, subd. (a).)  Count II alleged a violation of Penal Code section 245, subdivision (a) (assault by means of force likely to produce great bodily injury).

A jurisdictional hearing was held at which appellant was found to have committed second degree murder and to have been armed at the time of the commission of the murder.   He was adjudged a ward of the court and committed to the California Youth Authority.   The term of commitment was 15 years.   However, he was not to be confined beyond his 23rd birthday.

After an appeal to this court, the commitment to the California Youth Authority was reversed and the case was remanded for further proceedings.   We found that the juvenile court had abused its discretion in committing appellant to the California Youth Authority without a meaningful consideration of alternative dispositions.

Thereafter, the trial court again committed appellant to the California Youth Authority.   Rather than the 15-year commitment ordered in the first instance, he was committed for 17 years.   The distinction between the initial commitment and the second commitment was that a two-year arming enhancement was imposed in the second instance.1

The sole contention raised by appellant concerns an alleged violation of his right to due process of law.   He contends that the juvenile court judge impermissibly penalized his right to appeal his initial California Youth Authority commitment by imposing a lengthier California Youth Authority commitment after remand from this court.

The initial premise upon which appellant relies is that ordinarily a trial court may not penalize a defendant's right of appeal by imposing a harsher sentence after a successful appeal.  (North Carolina v. Pearce (1969) 395 U.S. 711, 726, 89 S.Ct. 2072, 2081, 23 L.Ed.2d 656.)   If a harsher sentence is imposed, it must be based on “objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.”  (Ibid.)  If objective reasons do not exist, the trial court violates the defendant's right to due process by imposing a harsher sentence.  (Id., at pp. 725–726, 89 S.Ct. at 2080–81.)   Although the foregoing rule was enunciated in the context of adult criminal proceedings, there does not appear to be any reason why it should not apply to juveniles as well.  “[N]either the Fourteenth Amendment nor the Bill of Rights is for adults alone.”  (In re Gault (1967) 387 U.S. 1, 13, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527;  see also In re David B. (1977) 68 Cal.App.3d 931, 137 Cal.Rptr. 577.)

However, as appellant concedes, there is a well-settled exception to the general rule that a greater sentence may not be imposed after a successful appeal.   In People v. Serrato (1973) 9 Cal.3d 753, 109 Cal.Rptr. 65, 512 P.2d 289, it was held that a harsher sentence could be imposed on remand where the trial court initially imposed an “unauthorized sentence.”  (Id., at pp. 764–765, 109 Cal.Rptr. 65, 512 P.2d 289.)   Thus, “a defendant who successfully attacks a judgment which is in excess of the court's jurisdiction is not necessarily entitled to claim the protection of that invalid judgment as an absolute limitation upon what the court may do thereafter.”  (Id., at p. 765, 109 Cal.Rptr. 65, 512 P.2d 289.)

The People rely on the “unauthorized sentence” exception in justifying the imposition of the arming enhancement in this case.   The People contend that Welfare and Institutions Code section 726, subdivision (c), requires the juvenile court to impose an enhancement which is properly pled and proven.   Appellant, on the other hand, contends that Welfare and Institutions Code sections 727 and 782 vest the juvenile court with discretion to strike and enhancement.   We do not think so.

The resolution of this case revolves around an issue of statutory interpretation which is apparently one of first impression.   If Welfare and Institutions Code section 726 prescribes mandatory specification of enhancements properly pled and proven, there was no error in this case.   However, if, as appellant contends, section 726 does not contain a mandatory directive to the juvenile court, the court in this case violated appellant's right to due process by specifying the enhancement.

The People rely on the following provision of section 726, subdivision (c), of the Welfare and Institutions Code:

“(c) That the welfare of the minor requires that his custody be taken from his parent or guardian.

“In any case in which the minor is removed from the physical custody of his parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.

“As used in this section and in Section 731, ‘maximum term of imprisonment’ means the longest of the three time periods set forth in paragraph (2) of subdivision (a) of Section 1170 of the Penal Code, but without the need to follow the provisions of subdivision (b) of Section 1170 of the Penal Code or to consider time for good behavior or participation pursuant to Sections 2930, 2931, and 2932 of the Penal Code, plus enhancements which must be proven if pled.”  (Emphasis added.)

The People contend that the cited language clearly mandates that an enhancement which has been properly pled and proven must be imposed by the juvenile court.   While there is no direct authority supporting this position, the Supreme Court has given every indication that the People's interpretation is correct.   The question in In re Ricky H. (1981) 30 Cal.3d 176, 178 Cal.Rptr. 324 was whether Welfare and Institutions Code section 726, subdivision (c), vested discretion in the juvenile court to choose the “maximum term of imprisonment” as that phrase is used in the statute.   The court held that “[s]ection 726 ‘is clearly directive and requires the juvenile court judge to automatically specify in his commitment order the maximum period of confinement corresponding to the applicable upper terms set forth in Penal Code section 1170, subdivision (a)(2).’ ”  (In re Ricky H., supra, at p. 191, 178 Cal.Rptr. 324, quoting In re James A. (1980) 101 Cal.App.3d 332, 339, 161 Cal.Rptr. 588.)

We believe the identical analysis applies to the clause of subdivision (c) which states, “plus enhancements which must be proven if pled.”   While it is not clear that the Legislature intended this clause to be read together with the clause providing for “maximum term[s] of imprisonment,” the entirety of the paragraph, in our opinion, leads to that conclusion.

The first clause of the paragraph sets forth the mandatory duty to specify the longest period of commitment as found in Penal Code section 1170, subdivision (a)(2).  (In re Ricky H., supra, 30 Cal.3d at p. 191, 178 Cal.Rptr. 324.)   The second clause specifically excludes application of other sections of the Penal Code.   The third clause, providing for enhancements, could arguably also be intended as an exclusion from the mandatory directive of the first clause.   However, it is far more reasonable to assume that the enhancement clause was intended to be read together with the first clause.

Initially, we note that a comma precedes the third clause.   Had the Legislature intended enhancements to be excluded from the mandatory provisions of clause one, enhancements would have been included in the second clause.   This interpretation becomes more persuasive in light of the fact that clause two contains several exemptions.   If enhancements were also to be exempted, there does not appear to be any reason why that exemption would be stated in a separate clause.   Thus, while subdivision (c) may not be a model of legislative draftsmanship, we believe it was the intent of the Legislature that the juvenile court is required to specify both the longest of the three periods set forth in Penal Code section 1170, subdivision (a)(2), and every enhancement which is pled and proven.

Appellant implicitly concedes the logic of this interpretation when he states that Welfare and Institutions Code section 726 “may appear to require the juvenile court judge to include all proven enhancements when computing a ward's maximum confinement time.”   He seeks to avoid subdivision (c)'s specific provision for enhancements by focusing on the final paragraph of section 726 which provides, “Nothing in this section shall be construed to limit the power of the court to retain jurisdiction over a minor and to make appropriate orders pursuant to Section 727 for the period permitted by Section 607.”   In turn, section 727, subdivision (1), provides in relevant part:  “[T]he court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of such minor ․”  Appellant also cites section 782 2 which provides for dismissal of a juvenile court petition.

Appellant contends that the foregoing statutory language vests the juvenile court with discretion to strike an enhancement.   We do not agree.   While either section 727 or section 782 could arguably provide the discretionary power appellant seeks to find therein, he has cited no authority construing these sections as standing for any position even remotely connected to that which he urges.   Moreover, we find his argument misplaced in light of the specific language of Welfare and Institutions Code section 726, subdivision (c), which discusses enhancements.   Where, as here, specific and general provisions of a statute are arguably in conflict, the court must uphold application of the specific provision.  (Rose v. State of California (1942) 19 Cal.2d 713, 723–724, 123 P.2d 505;  58 Cal.Jur.3d, Statutes, § 107, pp. 482–483.)

We find the juvenile court's initial commitment order was an “unauthorized sentence,” since the court acted in excess of its jurisdiction by failing to specify the arming enhancement which had been pled and proven.  (People v. Serrato, supra, 9 Cal.3d 753, 764, 109 Cal.Rptr. 65, 512 P.2d 289.)  In re Ricky H., supra, 30 Cal.3d 176, 178 Cal.Rptr. 324 holds that where the juvenile court fails to obey its mandatory duties under Welfare and Institutions Code section 726, it is proper for the appellate court to impose a harsher punishment than was originally imposed.  (In re Ricky H., supra, at p. 191, 178 Cal.Rptr. 324.)   If an appellate court may impose a harsher punishment when a minor exercises his right to appeal, it necessarily follows that the juvenile court may also correct an “unauthorized sentence.”   This is consistent with the general rule that “an unauthorized sentence is subject to judicial correction whenever the error comes to the attention of the trial court or a reviewing court.”  (In re Eugene R. (1980) 107 Cal.App.3d 605, 618, fn. 8, 166 Cal.Rptr. 219.)

Since the parties concur that it was error to impose a two-year enhancement under Penal Code section 12022, subdivision (a), appellant is entitled to have one year stricken from his California Youth Authority commitment.

The judgment is modified by reducing from two years to one year the term imposed for the enhancement.   The trial court is ordered to correct the judgment and the abstract of judgment to show such modification and to notify the California Youth Authority and all other interested agencies to correct respective records in compliance with such modification.   The California Youth Authority and all other interested agencies are ordered to make such modifications.

As so modified, the judgment is affirmed.

FOOTNOTES

1.   The parties concur that it was error to impose a two-year enhancement under Penal Code section 12022, subdivision (a).   That section authorizes only a one-year enhancement.   Thus, appellant is entitled to have one year stricken from his California Youth Authority commitment.

2.   Welfare and Institutions Code section 782 provides:“A judge of the juvenile court in which a petition was filed, at any time before the minor reaches the age of 21 years, may dismiss the petition or may set aside the findings and dismiss the petition if the court finds that the interests of justice and the welfare of the minor require such dismissal, or if it finds that the minor is not in need of treatment or rehabilitation.   The court shall have jurisdiction to order such dismissal or setting aside of the findings and dismissal regardless of whether the minor is, at the time of such order, a ward or dependent child of the court.”

ZENOVICH, Acting Presiding Justice.

PAULINE DAVIS HANSON and MARTIN,** JJ., concur.