IN RE: MAURICE J.

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Court of Appeal, Second District, Division 5, California.

IN RE: MAURICE J., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Appellant, v. MAURICE J., A Minor and Respondent.

Crim. B025399.

Decided: August 11, 1987

Ira Reiner, Dist. Atty., and Donald J. Kaplan and Eugene D. Tavris, Deputy Dist. Attys., for plaintiff and appellant. Wilbur F. Littlefield, Public Defender, and Alan H. Simon, Theodore Fasteau, Dennis Gallagher, Sue Robin Pollock and Susan L. Burrell, Deputy Public Defenders, for minor and respondent.

The People appeal following the dismissal of a Welfare and Institutions Code section 602 petition charging an aggravated assault in a state prison.   Two principal issues are presented, both of first impression:  (1) whether the People may appeal following the sustaining of a demurrer to the petition;  and (2) whether Penal Code section 4501, which denounces aggravated assault by persons confined in a “state prison,” applies to an assault committed in a facility under the jurisdiction of the Department of the Youth Authority (hereinafter, Youth Authority).

We conclude that the appeal lies, and that the petition does not charge a violation of Penal Code section 4501.   We therefore affirm the disposition of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

This case reaches us after a demurrer to a Welfare and Institutions Code section 602 delinquency petition had been sustained, followed by a dismissal of the petition.   We therefore take all of its well-pleaded allegations as true.

The petition alleges that on October 2, 1986, Maurice J., then a minor confined to the Southern Reception Center and Clinic, committed an aggravated assault on another person at that institution.   The parties agree that the Southern Reception Center and Clinic is a facility under the jurisdiction of the Youth Authority, and not of the Department of Corrections.

The petition alleges that the assault is a violation of Penal Code section 4501.   The basis of that claim is a definitional provision which, it is argued, declares Youth Authority facilities to be state prisons for purposes of section 4501.   In its demurrer, the respondent argued that the petition did not properly allege a violation of section 4501.   The trial court agreed, concluding that it had no jurisdiction over the offense as charged.   The trial judge stated that he “would order the District Attorney to file a new petition in this case, a demurrer being sustained.”   The clerk's minutes of the proceeding reflect that ruling and a direction that the petition be dismissed on the court's order.

The People filed a timely appeal from the “order” dismissing the case.

DISCUSSION

I. Appealability

Respondent challenges the People's authority to prosecute this appeal, on two grounds:  that a People's appeal is not permitted by statute;  and, even if it is, the order in this case is interlocutory and therefore not appealable.   We discuss each of these objections in turn.

A. The Statute Permits an Appeal by the People

The general rule is that “the right of appeal is statutory and a judgment or order is not appealable unless it is expressly made so by statute.”  (People v. Valenti (1957) 49 Cal.2d 199, 204, 316 P.2d 633.)   Thus, the People have no right of appeal except as provided by statute.  (People v. Smith (1983) 33 Cal.3d 596, 600, 189 Cal.Rptr. 862, 659 P.2d 1152.)

Appeals in juvenile cases are governed by Welfare and Institutions Code section 800.   The first sentence of that statute provides:  “A judgment in a proceeding under [Welfare and Institutions Code] Section 601 or 602, or the denial of a motion made pursuant to [Welfare and Institutions Code] Section 262, may be appealed from in the same manner as any final judgment, and any subsequent order may be appealed from as from an order after judgment.”

The plain language of this provision makes no distinction among the litigating parties.   Subject only to the constitutional restrictions against placing a minor twice in jeopardy in a delinquency case (see Jesse W. v. Superior Court (1979) 26 Cal.3d 41, 44, 160 Cal.Rptr. 700, 603 P.2d 1296), the statute clearly allows appeals by the People, as well as by the minor.

The quoted provision of Welfare and Institutions Code section 800 was amended to its present form in 1980.   The prior version was in sharp contrast to the present law.   The first sentence of section 800 had read:  “A judgment or decree of a juvenile court or final order of a referee which becomes effective without approval of a judge of the juvenile court assuming jurisdiction and declaring any person to be a person described in Section 601 or 602, or on denying a motion made pursuant to Section 567, may be appealed from in the same manner as any final judgment, and any subsequent order may be appealed from as from an order after judgment․”

The language we have emphasized had been construed to bar appeals by the People in cases arising under the juvenile court law.  (See People v. Superior Court (John D.) (1979) 95 Cal.App.3d 380, 385–386, 157 Cal.Rptr. 157;  In re Richard C. (1979) 89 Cal.App.3d 477, 482–483, 152 Cal.Rptr. 787.)   It was deleted in the 1980 amendment.

While the 1980 amendment to Welfare and Institutions Code section 800 also remedied other deficiencies (see In re James J. (1986) 187 Cal.App.3d 1339, 1341–1342, 232 Cal.Rptr. 456), its plain purpose also was to expand the right to appeal from judgments in juvenile court proceedings.   It is our duty, as a reviewing court, to recognize and respect that evident intent.  (See Select Base Materials, Inc. v. Board of Equal. (1959) 51 Cal.2d 640, 645, 335 P.2d 672 (fundamental rule of construction is that court should ascertain intent of Legislature so as to effectuate purpose of the law);  Mosk v. Superior Court (1979) 25 Cal.3d 474, 493, 159 Cal.Rptr. 494, 601 P.2d 1030 (generally, substantial change in statutory language indicates intent to change meaning);  Lake Forest Community Assn. v. County of Orange (1978) 86 Cal.App.3d 394, 402, 150 Cal.Rptr. 286, cited with approval in County of Los Angeles v. State of California (1987) 43 Cal.3d 46, 55, 233 Cal.Rptr. 38, 729 P.2d 202 (presumption that legislative deletion of express provisions from statute was intended to make substantial change in law).)   These rules have special force in this case, since the 1980 amendment immediately followed In re Richard C., supra, 89 Cal.App.3d 477, 152 Cal.Rptr. 787, which had construed section 800 to preclude a People's appeal.  (See Verreos v. City and County of San Francisco (1976) 63 Cal.App.3d 86, 99, 133 Cal.Rptr. 649 (amendment materially changing statute following court decision that interprets it is regarded as indication of legislative intent to change meaning of the law).)

Against this, respondent cites two authorities that are antagonistic to a People's appeal in juvenile court cases.   One of these is a textual passage in a book relating to practice in juvenile courts.  (Cal.Juvenile Court Practice (Cont.Ed.Bar 1981) § 14.101, p. 462.)   The passage supports respondent's position, but it was published just after the 1980 amendment, which it does not discuss, and it relies on authority that precedes the legislative change.

The other reference is more authoritative.   It is to California Rules of Court, rule 1396(a), which provides for appeals by minors, parents and guardians and, by inference, precludes appeals by the People.   This rule is part of a comprehensive set of rules (Cal.Rules of Court, Division Ia) adopted pursuant to Welfare and Institutions Code section 265, which authorizes the Judicial Council to “establish rules governing practice and procedure in the juvenile court not inconsistent with law.”

Rule 1396 is part of the original set of juvenile court rules, which became effective in 1977.   The provision about appeals was a correct paraphrase of the statute in force when it was adopted.   The rule has not been changed to reflect the 1980 amendment to Welfare and Institutions Code section 800, and it is no longer consistent with law.   Obviously, it cannot supervene the statute.  (See Iverson v. Superior Court (1985) 167 Cal.App.3d 544, 548, 213 Cal.Rptr. 399.)

Welfare and Institutions Code section 800 authorizes appeals from a “judgment.”   That term is not defined in the Welfare and Institutions Code, but we believe that it should be construed according to its general meaning:  “the final determination of the rights of the parties in an action or proceeding.”  (Code Civ.Proc., § 577.)   Finality is a key attribute of this definition;  it has been interpreted as “that situation where the judgment leaves no issue for future consideration.”  (Civic Western Corp. v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, 12, 135 Cal.Rptr. 915.)   We can think of nothing in the context of litigation that is more final and dispositive than the dismissal of the entire lawsuit before the court.

 We conclude that, subject to the constitutional restriction that we have discussed, Welfare and Institutions Code section 800 permits an appeal by the People from a judgment dismissing a delinquency petition following the sustaining of a demurrer.1

B. The Trial Court's Order Is Appealable

Respondent argues that the trial court did no more than sustain a demurrer, and that it did not dismiss the petition.   The basis of this contention is that, in its oral rendition of decision, the trial judge stated that he “would order the District Attorney to file a new petition in this case, a demurrer being sustained.”   Respondent apparently infers that this amounts to a ruling sustaining his demurrer with leave to amend, an interlocutory and nonappealable order.  (See People v. Rehman (1964) 62 Cal.2d 135, 137–138, 41 Cal.Rptr. 457, 396 P.2d 913.)

It is clear, however, that the court intended to effect a final disposition of the case.   In taking the demurrer under submission, the trial judge observed that, whatever the ruling, “the other side is going to appeal it, ․ since ․ it is an important issue.   Counsel seems to think it is, so I will frame an appropriate order.”

The trial judge announced his decision in open court, two days later.   He provided a detailed exposition of his reasoning and conclusion that the section 4501 charge was not cognizable in this case.   There is no way, consistent with the trial court's reasoning, that the People could have amended the petition to state a ground for wardship based on a section 4501 violation.   The trial court referred to a new petition, not to an amended petition.2

The clerk's minutes state that the trial court not only sustained the demurrer, but also ordered that the petition be dismissed.   Given the content and context of the court's statements, we believe this to be a faithful reflection of its action and intent.

Respondent argues that the Minute is inconsistent with the reporter's transcript, which must prevail.   But conflicts of this kind are not resolved mechanically;  instead, apparent disparities should be harmonized if possible.  (In re Evans (1945) 70 Cal.App.2d 213, 216, 160 P.2d 551.)   We find no irreconcilable conflict in the record of this case.   It is probable that the judge ordered the clerk to enter a dismissal because he believed that to be the proper disposition, given the rationale of the order sustaining the demurrer.  (See People v. Smith (1983) 33 Cal.3d 596, 599, 189 Cal.Rptr. 862, 659 P.2d 1152 (no irreconcilable conflict between oral statement by judge that “case will be dismissed” and clerk's minutes ordering entry of judgment, since it was possible court ordered entry of judgment believing that to be the proper disposition).)

 The clerk's minutes record an order that the petition be dismissed;  the reporter's transcript does not include a judgment of dismissal per se.   But, as we have observed in a similar context (involving an order sustaining a demurrer without leave to amend), “it is obvious that the court intended a final ruling, and respondent was entitled to the entry of an order of dismissal.   The matter has been fully briefed by both sides, and we perceive no prejudice to respondent in considering the merits now.   It would be a waste of judicial resources to require dismissal of the appeal, to be followed by the entry of an order of dismissal in the trial court and another appeal.   In such circumstances it has been held the appellate court may modify the order to make it a judgment and construe the notice of appeal to apply to that judgment.”  (Wilson v. Household Finance Corp. (1982) 131 Cal.App.3d 649, 651–652, 182 Cal.Rptr. 590.)   We will follow that course here.

II. Penal Code Section 4501 Does Not Apply to Assault in a Youth Authority Facility

The victim of an aggravated assault is in the same jeopardy of death or serious bodily injury, whether the assault is suffered in a facility under the jurisdiction of the Department of Corrections, or in a Youth Authority facility.   Nevertheless, there has been an historic differentiation in the punishment that may be imposed based on where the crime is committed.  (See In re Smith (1966) 64 Cal.2d 437, 438, 50 Cal.Rptr. 460, 412 P.2d 804.)   This legislative distinction remains in the statutory scheme, and we are obliged to respect it.

Penal Code section 4501 is an aggravated assault statute applicable to nonlife prisoners who commit that offense while “confined in a state prison of this state.”  Penal Code section 4504, subdivision (a) provides that, for purposes of Chapter 1 (“Offenses by Prisoners”) of Title 5 of the Penal Code, “A person is deemed confined in a ‘state prison’ if he is confined in any of the prisons and institutions specified in [Penal Code] Section 5003 by order made pursuant to law, including, but not limited to, commitments to the Department of Corrections or the Department of the Youth Authority, regardless of the purpose of such confinement and regardless of the validity of the order directing such confinement, until a judgment of a competent court setting aside such order becomes final.”  (Emphasis added.)   All of the institutions specified in Penal Code section 5003 are under the jurisdiction of the Department of Corrections.

The other sections in Chapter 1 specify punishment for prisoners who commit aggravated assault (if a life prisoner) (§ 4500), battery (§ 4501.5), possession of a deadly weapon (§ 4502) and holding a hostage (§ 4503).

The People argue that, by reason of the statutory definition, facilities of the Youth Authority are “state prisons” for purposes of this chapter.

We do not doubt that the Legislature may define a Youth Authority facility to be the equivalent of a state prison for purposes of an aggravated assault statute, such as Penal Code section 4501.  (See In re Marriage of Stephens (1984) 156 Cal.App.3d 909, 913, 203 Cal.Rptr. 331 (Legislature is empowered to prescribe legal definitions which are binding on courts).)   The question is whether it has done so in this instance.

Appellant's argument on appeal focuses on the “including, but not limited to” clause of the statute.   It argues that this provision enlarges the definition of “state prison” to include all facilities operated either by the Department of Corrections or by the Youth Authority.

“It is a general rule of statutory construction that modifying phrases are to be applied to the words immediately preceding them and are not to be construed to more remote language.”  (Tri-County Elevator Co. v. Superior Court (1982) 135 Cal.App.3d 271, 275, 185 Cal.Rptr. 208.)   Applying this principle, it is clear that the “including” phrase modifies “order made pursuant to law,” its last antecedent, rather than the remote phrase, “state prison.”

Any doubt about the proper construction of the phrase is dispelled by Penal Code section 6082, which provides that all references to prisons in Titles 5 and 7 of the Penal Code “refer to all facilities, camps, hospitals and institutions for the confinement, treatment, employment, training and discipline of persons in the legal custody of the Department of Corrections.”   As we have seen, Penal Code sections 4501 and 4504 are part of Title 5 of the code.  (Title 7 governs administration of the State Correctional System.)

 In short, the plain meaning of the pertinent statute does not include Youth Authority facilities within the scope of section 4501.   Where, as here, the statutory language is clear and unambiguous, it must be applied according to its plain meaning.  (See People v. Boyd (1979) 24 Cal.3d 285, 294, 155 Cal.Rptr. 367, 594 P.2d 484.)

Other principles of statutory construction lead to the same result.

The Legislative Counsel's Digest of S.B. 678, the measure that enacted Penal Code section 4504, subdivision (a),3 states that the bill would provide that “for purpose of provisions of law relating to offenses by prisoners, [a] person is confined in ‘state prison’ if he is confined in prison or institution under jurisdiction of Department of Corrections by order made pursuant to law, including commitments to Department of Corrections or Department of the Youth Authority, ․” This contemporaneous explanation of the effect of the bill, prepared by the office charged with digesting it for review by legislators and the public, is a valuable aid to its proper construction.   (See People v. Superior Court (Douglass) (1979) 24 Cal.3d 428, 434, 155 Cal.Rptr. 704, 595 P.2d 139.)   Statements in legislative committee reports may also be a useful aid in determining legislative intent.  (See Curtis v. County of Los Angeles (1985) 172 Cal.App.3d 1243, 1250, 218 Cal.Rptr. 772.)   A report of the Assembly Committee on Criminal Procedure summarizes the bill as providing penalties for persons who commit specified assaults while “confined in a state prison,” and goes on to explain that this phrase applies to “anyone confined in an institution under the jurisdiction of the Department of Corrections.”  (See New Statutes Affecting the Criminal Law, Report of the Assembly Committee on Criminal Procedure, 1969 Gen.Sess., p. 21.)

It also is significant that Penal Code sections 4501 and 4504 are in a chapter of the Penal Code that deals with offenses by prisoners, and which itself is included in a title captioned “Offenses Relating to Prisons and Prisoners.”   The placement of the sections and the chapter and title headings of the subparts of a code in which they are placed are also useful in construing the meaning of the statute.  (Bowland v. Municipal Court (1976) 18 Cal.3d 479, 489, 134 Cal.Rptr. 630, 556 P.2d 1081;  cf. Progress Glass Co. v. American Ins. Co. (1980) 100 Cal.App.3d 720, 726, 161 Cal.Rptr. 243 (chapter headings may not be used in aid of interpreting a code that includes a provision that prohibits it;  Welfare and Institutions Code section 6 is such a provision, but the Penal Code has none).)   It is hardly likely that a provision punishing persons who are not in the custody of the Department of Corrections would be placed in a portion of the code that is otherwise entirely devoted to crimes by persons who are in the custody of that agency.

Appellant argues, nevertheless, that unless the construction it advances is accepted, the reference in Penal Code section 4504, subdivision (a) to the Youth Authority would be mere surplusage.   It invokes the rule that statutory language should not be construed as surplusage.  (See In re Gray (1978) 85 Cal.App.3d 255, 262, 149 Cal.Rptr. 416.)

This argument would have some force if the construction urged by the appellant was necessary to avoid the inference of surplusage.   It is not.   The statute applies to inmates of institutions specified in Penal Code section 5003, whether they arrive there by reason of a direct commitment to the Department of Corrections or to the Youth Authority.  Welfare and Institutions Code section 1755.5 authorizes the Youth Authority to transfer young adults to specified facilities of the Department of Corrections.  Penal Code section 4501 is applicable to such persons.  (See In re Smith, supra, 64 Cal.2d at p. 440, 50 Cal.Rptr. 460, 412 P.2d 804.)   Each of the institutions identified in Welfare and Institutions Code section 1755.5 is specified as a state prison in a subdivision of Penal Code section 5003.  (See § 5003, subds. (d), (e), (f), (g), (j) and (o ).)   Without the reference to the Youth Authority in Penal Code section 4504, subdivision (a), it would have been arguable that the crimes specified in sections 4500–4503 of the Penal Code could only be committed by persons who had been directly committed to the Department of Corrections by the sentencing court.

Finally, the construction urged by appellant would itself lead to surplusage.  Welfare and Institutions Code section 1768.8 punishes certain assaults by persons confined to a Youth Authority facility.   There would be no need for this provision, which was added in 1984 (Stats.1984, ch. 709, p. 2623)—long after the 1969 amendment to Penal Code section 4504—if Penal Code section 4501 substantially covered the same conduct.

We conclude that the legislative purpose in the inclusion clause of Penal Code section 4504, subdivision (a) was to make it clear beyond reasonable argument that Penal Code sections 4500–4503 apply to anyone confined to a Department of Corrections facility, regardless of whether the original commitment was to the Department of Corrections or the Youth Authority, and regardless of the reason for or validity of the confinement.   The purpose was not to deal with persons who are not in the custody of the Department of Corrections at all.

DISPOSITION

The order of dismissal, construed as a judgment of dismissal, is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   We recognize that Penal Code section 1238, subdivision (a)(2) expressly permits an appeal by the People from a judgment for the defendant after a demurrer has been sustained, and that there is no corresponding provision in the Welfare and Institutions Code.   But the reason for the omission is that the juvenile court law makes no provision for a demurrer.   The authority of the court to permit that form of challenge to a petition is inherent, and is declared by case law.  (See In re Fred J. (1979) 89 Cal.App.3d 168, 176, 152 Cal.Rptr. 327 (declaring the authority;  a Welfare and Institutions Code section 300 case);  In re Jamil H. (1984) 158 Cal.App.3d 556, 560, 204 Cal.Rptr. 816 (section 602 case).)

2.   While the court said that it would “order” the prosecutor to file a new petition, it obviously had no power to do so.   The term “order” should be understood as a suggestion that a new petition be filed, probably alleging a violation of Penal Code section 245, the general aggravated assault statute.

3.   The bill was chaptered as Stats.1969, ch. 1010, pp. 1980–1981.

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

ASHBY, Acting, P.J., and HASTINGS, J., concur.