PEOPLE v. DAVIS

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Court of Appeal, First District, Division 4, California.

The PEOPLE, Plaintiff and Appellant, v. Robert Vonroski DAVIS, Defendant and Respondent.

No. A067242.

Decided: April 24, 1996

Daniel E. Lungren, Attorney General of the State of California, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Gerald A. Engler, Supervising Deputy Attorney General, and Joan Killeen, Deputy Attorney General, San Francisco, for appellant. Janice M. Brickley, San Leandro, for respondent.

Defendant Robert Vonroski Davis was charged by information with the murder of Diaonne Dennis and the attempted murder of Carl Young.   As to each count, it was alleged that Davis personally used a firearm.   Three priors were alleged under the three strikes law (Pen.Code,1 § 667):  (1) a 1990 juvenile adjudication of felony assault (§ 245);  (2) a 1991 juvenile adjudication of residential burglary (§§ 459, 460, subd. 1);  and (3) an adult conviction of robbery (§ 211).

Prior to trial, Davis moved to strike the juvenile adjudications on the following grounds:  (1) that as to the residential burglary, section 667, subdivision (d)(3)(D) requires that the juvenile be adjudged a ward of the court “because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code” and residential burglary is not so listed;  (2) that as to both adjudications, section 667, subdivision (d)(3)(C) requires that the juvenile be “found to be a fit and proper subject to be dealt with under the juvenile court law” and there was no such express finding;  (3) that as to both adjudications, section 667, subdivision (d)(1) requires that the prior be determined a serious or violent felony on the date of conviction and no such determination was made;  (4) that as to both adjudications, the absence of a jury trial prevents their use as strikes.

At the conclusion of the hearing on the motion to strike, the trial court granted the same, finding that the residential burglary failed to qualify as a strike because it was not an offense listed in Welfare and Institutions Code section 707, subdivision (b) and, additionally, that both adjudications failed to qualify as strikes because there was no express finding of fitness for treatment under juvenile court law.   The court rejected the contention that the prior be determined as a strike on the date of conviction and found it “unnecessary” to address the constitutional claim concerning the absence of a jury trial.

The People appeal the order striking the priors as a dismissal of a portion of the information. (§ 1238, subd. (a)(1).) 2  We affirm in part and reverse in part.

DISCUSSION

1. Because residential burglary is not “an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code,” the adjudication does not constitute a strike.

 Whether a prior juvenile adjudication constitutes a strike is governed by section 667, subdivision (d)(3),3 which provides:  “(d) 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 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.” (§ 667, subd. (d)(3)(A)-(D).)

Paragraph (1) referenced in section 667, subdivision (d)(3)(B) (hereafter subsection “(B)”) includes “any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state.” (§ 667, subd. (d)(1).)   The offense of “burglary of an inhabited dwelling house” is defined as a “serious felony” under section 1192.7, subdivision (c)(18) and thus falls within the language of subsection “(B).”   In short, Davis's adjudication of residential burglary qualifies under subsection “(B)” because it is a serious felony as defined in section 1192.7, subdivision (c).

Section 667, subdivision (d)(3)(D) (hereafter subsection “(D)”) requires that the juvenile be adjudged a ward of the court “because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code.” Residential burglary, i.e., “burglary of an inhabited dwelling house,” is not listed in 707(b).4  Residential burglary, therefore, qualifies under subsection “(B)” but not subsection “(D).”

Both the People and Davis agree that to qualify as a strike the prior juvenile adjudication must meet all the requirements of section 667, subdivision (d)(3), including subsections “(A)” through “(D).”   The People argue that we should rewrite subsection “(D)” by either deleting reference to the commission of a 707(b) offense or adding language to include serious or violent felonies as described in subsection “(B).”   Davis argues that the language of subsection “(D)” is clear and requires that the offense be a 707(b) offense.

We agree with Davis that there is nothing unclear in the language used by the Legislature in subsection “(D).”   It expressly provides that the offense resulting in the adjudication of wardship be “an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code.” We agree also with the Attorney General that a literal reading of subsection “(D)” tends to render subsection “(B)” superfluous.   If the juvenile must be adjudged a ward of the court based on a 707(b) offense as provided in subsection “(D),” the definition of “prior offense” in subsection “(B)” as including not only 707(b) offenses but serious or violent felonies as well, when not all serious or violent felonies are 707(b) offenses, seems to render the definition meaningless or, at best, ambiguous.

 When confronted with conflicting provisions of a statute, the rule is clear:  “It is fundamental that legislation should be construed so as to harmonize its various elements without doing violence to its language or spirit.   Wherever possible, potentially conflicting provisions should be reconciled in order to carry out the overriding legislative purpose as gleaned from a reading of the entire act.  [Citation.]  A construction which makes sense of an apparent inconsistency is to be preferred to one which renders statutory language useless or meaningless.”  (Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 788, 176 Cal.Rptr. 104, 632 P.2d 217;  see Hartford Fire Ins. Co. v. Macri (1992) 4 Cal.4th 318, 326, 14 Cal.Rptr.2d 813, 842 P.2d 112.)   In attempting to reconcile conflicting provisions in a statute, courts are not at liberty to simply rewrite or revise the statute:  “If the words of the statute are clear, the court should not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.”  (People v. Knowles (1950) 35 Cal.2d 175, 183, 217 P.2d 1;  see People v. Morris (1988) 46 Cal.3d 1, 15, 249 Cal.Rptr. 119, 756 P.2d 843.)   Although reconciliation of conflicting provisions is “to be preferred,” we conclude that it is not “possible” in this case.

 The Attorney General argues that we should ignore the clear language of subsection “(D)” because it is contrary to the legislative intent “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).)  There is no dispute that the legislative intent in enacting section 667 is as described.   However, adherence to the requirement set forth in subsection “(D)” does not violate or contravene that intent or objective.   Simply stated, most of the “serious and/or violent felony offenses” are included within 707(b), and the fact that some are excluded by application of subsection “(D)” does not defeat the purpose of the statute nor does it produce an unreasonable result in distinguishing between the juvenile offender and the adult.   In fact, this distinction between the juvenile and adult offender concerning the offenses qualifying as strikes was recognized in the “Official Title and Summary Prepared by the Attorney General” contained in the ballot pamphlet for the General Election of November 8, 1994, wherein the effect of both the legislation at issue here and the initiative, Proposition 184 (now § 1170.12), were discussed at page 33:  “Both measures also require that specified crimes committed by a minor, who was at least age 16 at the time of the crime, count as a previous conviction.   These specified crimes generally include the same crimes defined as serious and violent felonies.”  (Italics added.)   It is well settled that “ballot summary and arguments and analysis presented to the electorate in connection with a particular measure may be helpful in determining the probable meaning of uncertain language.”  (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 246, 149 Cal.Rptr. 239, 583 P.2d 1281.)   It would appear, at least as of November 8, 1994, the Attorney General recognized that not all “serious and/or violent felony offenses” qualified as strikes for the juvenile offender.   We agree with that view, which is entirely consistent with the language of subsection “(D).”

 Where conflicting provisions of a penal statute cannot be reconciled, “․ ‘ordinarily that construction which is more favorable to the offender will be adopted.  [¶] The defendant is entitled to the benefit of every reasonable doubt, whether it arise out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute.’ ”   (People v. Davis (1981) 29 Cal.3d 814, 828, 176 Cal.Rptr. 521, 633 P.2d 186, quoting from In re Tartar (1959) 52 Cal.2d 250, 256–257, 339 P.2d 553;  see also People v. Garfield (1985) 40 Cal.3d 192, 200, 219 Cal.Rptr. 196, 707 P.2d 258.)   Having concluded that the language of subsection “(D)” is clear in requiring adjudication of wardship on the basis of a 707(b) offense and that a literal reading of subsection “(D)” does not contravene the expressed legislative intent, we apply the above rule to resolve the conflict or ambiguity that we deem irreconcilable between subsection “(B)” and subsection “(D).”

Accordingly, we hold that the trial court was correct in striking the prior juvenile adjudication of residential burglary because the offense is not listed in 707(b) as required under subsection “(D).”

2. An implied finding of fitness is sufficient under section 667, subdivision (d)(3)(C).

In addition to the requirement set forth in subsection “(D)” that the prior adjudication be for a 707(b) offense, section 667, subdivision (d)(3)(C) (hereafter subsection “(C)”) provides that “[t]he juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law.”   The trial court concluded that this language required an express finding of fitness and, in the absence of such an express finding, the prior juvenile adjudication could not qualify as a strike.   Because we find that an implied finding of fitness is sufficient under subsection “(C),” we conclude that the trial court erred in striking Davis's juvenile adjudication of felony assault on this ground.

The only way in which an express or formal finding of fitness occurs is if the prosecuting attorney files a petition under Welfare and Institutions Code section 707.   In filing such a petition, the prosecuting attorney is seeking to have the juvenile offender declared “unfit” to be dealt with by the juvenile court.   The prosecuting attorney, in filing the section 707 petition, wants the minor treated as an adult offender in adult court.   If the offense is a 707(b) offense committed by a minor 16 years of age or older, “the minor shall be presumed to be not a fit and proper subject to be dealt with under the juvenile court law” unless a contrary finding is made based on specific criteria.  (Welf. & Inst.Code, § 707, subd. (c).)  The requirement of an express finding of “fitness” makes sense in the context of a section 707 petition for a 707(b) offense because the minor is presumed to be “unfit.”

 Where the prosecuting attorney does not seek to have the minor declared unfit by filing a section 707 petition, the minor, who is alleged to have violated the law, “is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court.”  (Welf. & Inst.Code, § 602.)   Proceedings under section 602 with the resulting adjudication of wardship and treatment of the minor under the jurisdiction of the juvenile court constitutes an implied finding that the minor is “a fit and proper subject to be dealt with under the juvenile court law.”

In our view, this implied finding of fitness is sufficient to satisfy the requirements of subsection “(C).”   To hold otherwise would lead to the strange result of requiring the prosecution to seek a finding of unfitness and then lose in order to obtain an “express” finding of fitness.   Surely, had the Legislature intended such a result, some reference to a section 707 petition or the need for an “express” finding would have been made somewhere in section 667, subdivision (d)(3).   There is no such language.

Accordingly, the trial court erred in striking the prior felony assault adjudication on the basis that there was no express finding of fitness.5

3. The use of a prior juvenile adjudication as a strike does not violate the constitutional right to a jury trial and due process of law.**

CONCLUSION

The order striking Davis's prior juvenile adjudication of residential burglary is affirmed.   The order striking Davis's prior juvenile adjudication of felony assault is reversed.

FOOTNOTES

FN1. All further section references are to the Penal Code unless otherwise indicated..  FN1. All further section references are to the Penal Code unless otherwise indicated.

2.   During the pendency of this appeal, Davis was convicted of the substantive charges, with the adult robbery prior being found true, and received a sentence of 35 years to life with a consecutive term of life plus 5 years.   This judgment was affirmed this date in People v. Davis, A070153 [nonpub. opn.].

3.   Davis was charged under the statute.   The initiative, Proposition 184, contains substantially the same language.  (See § 1170.12, subd. (b)(3).)

4.   References to “707(b)” mean section 707, subdivision (b) of the Welfare and Institutions Code.

5.   In an opinion that is not final, the Fourth District recently reached a different result.  (See People v. Renko (1996) 44 Cal.App.4th 620, 52 Cal.Rptr.2d 45.)

FOOTNOTE.   See footnote*, ante.

REARDON, Associate Justice.

ANDERSON, P.J., and HANLON, J., concur.