PEOPLE v. GRAHAM (1997)

OPINION

Appellant Michael Anthony Graham stands convicted of being an ex-felon in possession of a firearm (Pen.Code,1 § 12021, subd. (a)(1);  count one), brandishing a firearm (§ 417, subd. (a)(2);  count two), and being under the influence of a controlled substance (Health & Saf.Code, § 11550, subd. (a);  count three).   He was found to have suffered two prior convictions (an adult conviction for robbery and a juvenile adjudication of attempted robbery) within the meaning of the “three strikes” law (§§ 667, subds.(b)-(i);  1170.12, subds. (a)-(e)) and to have suffered three prior convictions for which he served prison terms (§ 667.5, subd. (b)).²  Appellant was sentenced to 25 years to life in prison and has timely appealed.³

DISCUSSION

I. Use of Juvenile Adjudication as a “Strike”

Prior to sentencing, appellant moved to strike his prior juvenile adjudication (a 1979 finding of attempted robbery) for purposes of its use as a “strike” under section 667, subdivisions (b) through (i).   The trial court denied the motion without comment.   Appellant now argues the juvenile adjudication is not a “prior felony conviction” within the terms of the three strikes law because (1) it was not accompanied by a finding that he was a fit and proper subject to be dealt with under the juvenile court law;  (2) it was obtained without a jury trial or waiver thereof;  (3) with regard to the use of juvenile adjudications, due process requires that the three strikes law be given prospective application only;  and (4) the adjudication was not for a crime listed in Welfare and Institutions Code section 707, subdivision (b).

The relevant portion of section 667 states:

“(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.[[[[[[[[ 4]

“(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.”

The parties agree the conditions set forth in section 667, subdivisions (d)(3)(A) and (B) were met in the present case.   They disagree on the remaining two requirements.⁵

A. Lack of Express Finding of Fitness

Appellant first contends section 667, subdivision (d)(3)(C) was not fulfilled because there was no express finding, in conjunction with his juvenile adjudication, that he was a fit and proper subject to be dealt with under the juvenile court law.

An express finding of fitness or unfitness is made only in certain cases, as set out in Welfare and Institutions Code section 707.⁶  As the California Supreme Court has explained,

“Pursuant to Welfare and Institutions Code section 602 ․, the People may petition the juvenile court in a delinquency proceeding to declare any minor a ward of the court with the allegation that he has committed virtually any criminal offense.

“In accordance with Welfare and Institutions Code section 707 ․, the People may move the juvenile court to determine whether a minor who is alleged in a delinquency petition to have committed a criminal offense at 16 or 17 years of age is fit to be dealt with under the juvenile court law.  (Welf. & Inst.Code, § 707, subds. (a), (c).)   For offenses generally, the juvenile court is permitted to find unfitness in light of certain ‘fitness' criteria.   (Id., § 707, subd. (a).)  But for offenses specified in subdivision (b), it is required to presume unfitness unless it concludes otherwise under each and every one of those same criteria.  (Id., § 707, subd. (c).)  If it finds unfitness, prosecution in a court of criminal jurisdiction is authorized.   (Id., § 707.1, subd. (a).)”  (In re Christopher R. (1993) 6 Cal.4th 86, 88, 23 Cal.Rptr.2d 786, 859 P.2d 1301.)

 Thus, under Welfare and Institutions Code section 707, a finding of fitness is made by operation of the juvenile court law unless the prosecuting attorney petitions for a finding of un fitness.  “Unless a minor is to be involuntarily removed from the juvenile court system, there is no necessity for a fitness hearing” (In re Anna Marie S. (1979) 99 Cal.App.3d 869, 873, 160 Cal.Rptr. 495), nor will there be an express finding on the issue.

In our view, the overall purpose of subdivision (d)(3) of section 667 is to include as a “striker” anyone who committed a specified offense when he or she was 16 or 17 years old, but who remained in the juvenile court system as opposed to being tried as an adult.   We see part (C) of the subdivision as merely being the Legislature's way of referring to those who remained under the juvenile court's jurisdiction despite the commission of a serious offense.   Accordingly, we do not read the provision as requiring an express finding of fitness.   A finding by operation of law is sufficient.

 We recognize that “[i]t is a settled axiom of statutory construction that significance should be attributed to every word and phrase of a statute, and a construction making some words surplusage should be avoided.”  (People v. Woodhead (1987) 43 Cal.3d 1002, 1010, 239 Cal.Rptr. 656, 741 P.2d 154.)   Our analysis does not relegate part (C) to mere surplusage, however;  instead, part (C) describes the type of offender who may be subject to a “strike” based on a juvenile adjudication.   Moreover, the principal rule in construing a statute is to determine the Legislature's intent.  (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 826, 4 Cal.Rptr.2d 615, 823 P.2d 1216.)   The statutory language itself is the best indicator of that intent (ibid.);   here, the statute says nothing about an express finding of fitness.

To hold that an express finding of fitness is required would mean that a prosecutor would have to file a petition pursuant to Welfare and Institutions Code section 707 in every case in order to ensure the offense could later be considered a “strike.”   The prosecutor would then have to “lose” on the issue in order to obtain the express finding of fitness.   Of course, if the prosecutor “won” on the issue, he or she would be in the same position, since the minor would then be tried as an adult and, if convicted of a specified offense, would acquire a “strike.”   Nothing would be gained by such a requirement except to encumber already-overburdened juvenile courts and prosecutors with additional hearings under Welfare and Institutions Code section 707.

We accept the proposition that the drafters of the three strikes law (both the legislative and initiative versions) intended to include some, but not all, juvenile adjudications as “strikes” for sentencing purposes.   In our view, however, the dividing line between those adjudications used as “strikes” and those ineligible for such status does not, as appellant would have us hold, depend on whether an express finding of fitness was made, but rather on whether the offender was 16 or 17 years old and committed a specified offense.   Accordingly, we hold that no express finding of fitness is required before a juvenile adjudication can be used as a “strike.”

B. Lack of Right to Jury Trial

 Appellant next argues that, assuming his juvenile adjudication qualifies as a “prior conviction” under the three strikes law, it must nevertheless be stricken because he did not have, or waive, the right to a jury trial thereon.   We disagree.

 It is settled that while certain constitutional protections enjoyed by adults accused of crimes also apply to juveniles (e.g., notice of charges, right to counsel, privilege against self-incrimination, right to confrontation and cross-examination, double jeopardy, proof beyond a reasonable doubt), “the Constitution does not mandate elimination of all differences in the treatment of juveniles.”  (Schall v. Martin (1984) 467 U.S. 253, 263, 104 S.Ct. 2403, 2409, 81 L.Ed.2d 207.)   Thus, juveniles enjoy no state or federal due process or equal protection right to a jury trial in delinquency proceedings.  (Ibid.;  McKeiver v. Pennsylvania (1971) 403 U.S. 528, 543-551, 91 S.Ct. 1976, 1985-1989, 29 L.Ed.2d 647;  Alfredo A. v. Superior Court (1994) 6 Cal.4th 1212, 1225, 26 Cal.Rptr.2d 623, 865 P.2d 56;  People v. Superior Court (Carl W.) (1975) 15 Cal.3d 271, 274, 124 Cal.Rptr. 47, 539 P.2d 807;  In re Jose M. (1994) 21 Cal.App.4th 1470, 1480, 27 Cal.Rptr.2d 55;  In re T.R.S. (1969) 1 Cal.App.3d 178, 181-182, 81 Cal.Rptr. 574.)

Appellant says that by enacting the three strikes law and stating in subdivision (d)(3) of section 667 that “ ‘[a] prior juvenile adjudication shall constitute a prior felony conviction ’ ” (emphasis added), “the Legislature has explicitly declared that some juvenile adjudications shall now constitute criminal convictions.”   Accordingly, he argues, the right to a jury trial attaches and invalidates use of his juvenile adjudication as a “strike” because he was not informed of and did not waive that right.  (See People v. Sumstine (1984) 36 Cal.3d 909, 914, 206 Cal.Rptr. 707, 687 P.2d 904.)

In People v. Sumstine, supra, 36 Cal.3d 909, 206 Cal.Rptr. 707, 687 P.2d 904, the California Supreme Court held that a defendant whose sentence is enhanced by a prior conviction may collaterally attack the validity of that conviction on the ground he or she was not informed of or did not waive his or her constitutional rights, including that of trial by jury.  (Id. at p. 914, 206 Cal.Rptr. 707, 687 P.2d 904.)   However, Sumstine addressed prior adult convictions, concerning which there is a constitutional right to a jury trial.

By enacting the three strikes law, the Legislature has not transformed juvenile adjudications into criminal convictions;  it has simply said that a prior juvenile adjudication will be deemed a “prior felony conviction,” as that term is used in the three strikes law, “for purposes of sentence enhancement ” under specified circumstances. (§ 667, subd. (d)(3), emphasis added.)   The use of a juvenile adjudication for sentence enhancement purposes does not have the effect of equating juvenile delinquency proceedings with adult criminal proceedings.   Nothing in the three strikes law suggests the Legislature intended such a result, which essentially would have the effect of repealing the juvenile court law at its most fundamental level.   Significantly, the three strikes law's use of juvenile adjudications affects only the length of sentence, not the finding of guilt in the adult court or the adjudication process in the juvenile court.   As the United States Supreme Court has stated, a jury is not necessarily part of every criminal process that is fair and equitable, and the imposition of a jury trial on the juvenile system would not strengthen the fact-finding function.  (McKeiver v. Pennsylvania, supra, 403 U.S. at p. 547, 91 S.Ct. at p. 1987.)   Since a juvenile constitutionally can be adjudicated a delinquent without being afforded a jury trial, there is no constitutional impediment to using that juvenile adjudication for enhancement purposes following a later adult conviction.

At least two federal cases are in accord.   In United States v. Williams (9th Cir.1989) 891 F.2d 212, cert. den. sub nom. Williams v. United States (1990) 494 U.S. 1037, 110 S.Ct. 1496, 108 L.Ed.2d 631, an adult sentence was enhanced based on prior juvenile adjudications at which there was no right to a jury trial, and a prior juvenile hall commitment was categorized as a term of imprisonment for enhancement purposes.  (United States v. Williams, supra, 891 F.2d at p. 213.)   In upholding the enhanced sentence, the Court of Appeals stated:  “[I]t is not unconstitutional to deprive a juvenile of liberty without a jury trial.   If it does not violate due process for a juvenile to be deprived of his or her liberty without a jury trial, we fail to find a violation of due process when a later deprivation of liberty is enhanced due to this juvenile adjudication.”  (Id. at p. 215.)   Similarly, in McCullough v. Singletary (11th Cir.1992) 967 F.2d 530, cert. den.  507 U.S. 975, 113 S.Ct. 1423, 122 L.Ed.2d 792, a state sentencing rule permitted sentence enhancement based on prior juvenile dispositions which were the equivalent of convictions.   The defendant received an enhanced sentence based on his prior juvenile delinquency adjudications;  as a result of this enhancement, he was sentenced to life in prison without the possibility of parole.  (McCullough v. Singletary, supra, 967 F.2d at p. 531 & fn. 2.)   The Court of Appeals upheld imposition of the enhanced sentence, stating:  “While a trial by jury in a criminal case is fundamental to our system of justice, a trial by jury in a juvenile proceeding is not a constitutional requirement.”  (Id. at p. 532.)

Based on the foregoing, we hold that appellant is not entitled to have his prior juvenile adjudication stricken because he was not afforded, nor did he waive, a jury trial thereon.

C. Lack of Notice

 Appellant next contends if we hold that a juvenile adjudication may be used as a “strike” despite the lack of an express fitness finding, our holding can be given prospective application only and, hence, his juvenile adjudication cannot be deemed to be a “strike.”   This is so, he says, because “[n]o person of ordinary intelligence could reasonably be expected to anticipate” such a holding, which would be contrary to the explicit terms of section 667, subdivision (d)(3)(C);  thus, retroactive application would violate due process notice requirements.

“The first essential of due process is fair warning of the act which is made punishable as a crime.  ‘That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law.’  (Connally v. General Constr. Co. (1926) 269 U.S. 385, 391 [46 S.Ct. 126, 127, 70 L.Ed. 322].)  ‘No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.   All are entitled to be informed as to what the State commands or forbids.’   (Lanzetta v. New Jersey (1939) 306 U.S. 451, 453 [59 S.Ct. 618, 619, 83 L.Ed. 888].)   The law of California is in full accord.  (In re Newbern [ (1960) ] 53 Cal.2d 786, 792 [3 Cal.Rptr. 364, 350 P.2d 116];  In re Davis [ (1966) ] 242 Cal.App.2d 645, 650-651 [51 Cal.Rptr. 702].)

“This requirement of fair warning is reflected in the constitutional prohibition against the enactment of ex post facto laws (U.S. Const., art. I, §§ 9, 10;  Cal. Const., art. I, § 16).   When a new penal statute is applied retrospectively to make punishable an act which was not criminal at the time it was performed, the defendant has been given no advance notice consistent with due process.   And precisely the same effect occurs when such an act is made punishable under a preexisting statute but by means of an unforeseeable judicial enlargement thereof.  (Bouie v. City of Columbia (1964) 378 U.S. 347 [84 S.Ct. 1697, 12 L.Ed.2d 894].)”  (Keeler v. Superior Court (1970) 2 Cal.3d 619, 633-634, 87 Cal.Rptr. 481, 470 P.2d 617, parallel citations omitted.)

 “In considering whether a legislative proscription is sufficiently clear to satisfy the requirements of fair notice, ‘we look first to the language of the statute, then to its legislative history, and finally to California decisions construing the statutory language.’  [Citations.]  We thus require citizens to apprise themselves not only of statutory language but also of legislative history, subsequent judicial construction, and underlying legislative purposes [citation].”  (Walker v. Superior Court (1988) 47 Cal.3d 112, 143, 253 Cal.Rptr. 1, 763 P.2d 852.)

The three strikes law has been upheld against claims of vagueness and deprivation of due process right to fair notice.  (See, e.g., People v. Cargill (1995) 38 Cal.App.4th 1551, 1555, 45 Cal.Rptr.2d 480;  People v. Sipe (1995) 36 Cal.App.4th 468, 479-482, 42 Cal.Rptr.2d 266.)   Nevertheless, under Keeler, “[t]he issue remains, would the judicial enlargement ․ now proposed have been foreseeable to this [defendant]?”  (Keeler v. Superior Court, supra, 2 Cal.3d at p. 635, 87 Cal.Rptr. 481, 470 P.2d 617.)   If not, application of the statute to him constitutes a deprivation of due process.

 We find no foreseeability problem here.   As we have already noted, section 667, subdivision (d)(3)(C) does not require, either explicitly or by implication, an express finding of fitness.   A person of ordinary intelligence reasonably can be expected to have understood, upon enactment of the three strikes law, that his or her prior juvenile adjudication might be used to enhance a subsequently imposed sentence.   Thus, application of section 667, subdivision (d)(3) to appellant involves no due process deprivation.⁷

D. Welfare and Institutions Code Section 707, Subdivision (b)

 In his reply brief, appellant asserts, without analysis, that the People failed to prove his juvenile adjudication was for an offense listed in Welfare and Institutions Code section 707, subdivision (b);  hence, the adjudication cannot be deemed a “strike” because the requirement of section 667, subdivision (d)(3)(D) was not satisfied.   Normally we would not discuss this issue for two reasons.   First, “ ‘Where a point is merely asserted by counsel without any argument of or authority for its proposition, it is deemed to be without foundation and requires no discussion.’ ”  (People v. Dougherty (1982) 138 Cal.App.3d 278, 282, 188 Cal.Rptr. 123;  see also People v. Hardy (1992) 2 Cal.4th 86, 150, 5 Cal.Rptr.2d 796, 825 P.2d 781;  People v. Wharton (1991) 53 Cal.3d 522, 563, 280 Cal.Rptr. 631, 809 P.2d 290.)   Second, as a general proposition, points raised for the first time in a reply brief will not be considered unless good reason is shown for failure to present them earlier.  (People v. Adams (1990) 216 Cal.App.3d 1431, 1441, fn. 2, 265 Cal.Rptr. 568;  People v. Jackson (1981) 121 Cal.App.3d 862, 873, 176 Cal.Rptr. 166.)   Appellant has not attempted to show any reason here.

Nevertheless, we will address the issue on its merits, in part to forestall a claim of ineffectiveness of appellate counsel.   Significantly, the People, in apparent anticipation of the argument, have themselves broached the subject by asserting that the three strikes law demonstrates an intent to include as prior convictions not only the crimes listed in subdivision (b) of Welfare and Institutions Code section 707, but also those listed as violent felonies in section 667.5, subdivision (c), and as serious felonies in section 1192.7, subdivision (c).

Appellant's juvenile adjudication was for attempted robbery involving the use of a knife.⁸  As previously set out, section 667, subdivision (d)(3) provides in part:

“(3) A prior juvenile adjudication shall constitute a prior felony conviction for purposes of sentence enhancement if:

“․

“(B) The prior offense is listed in subdivision (b) of Section 707 of the Welfare and Institutions Code or described in paragraph (1) [i.e., defined in section 667.5, subdivision (c) as a violent felony or defined in section 1192.7, subdivision (c) as a serious felony] or (2) as a felony.

“․

“(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.” (See also § 1170.12, subds. (b)(3)(B), (D).)

 Attempted robbery involving the personal use of a knife constitutes a serious felony under subdivision (c)(23) of section 1192.7.   Appellant's juvenile adjudication therefore met the requirement of section 667, subdivision (d)(3)(B).   The offense is not, however, listed in Welfare and Institutions Code section 707, subdivision (b).⁹  (David P. v. Superior Court (1982) 127 Cal.App.3d 417, 421, 179 Cal.Rptr. 673 [robbery while armed with a dangerous or deadly weapon (Welf. & Inst.Code, § 707, subd. (b)(3)) does not include attempted robbery while armed with a dangerous or deadly weapon].)   Accordingly, the offense does not meet the requirement of section 667, subdivision (d)(3)(D), if that provision is read literally.   In this regard, however,

“ ‘We are not prohibited “from determining whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute.   The meaning of a statute may not be determined from a single word or sentence;  the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible.   Literal construction should not prevail if it is contrary to the legislative intent apparent in the [statute.]” ’  ‘The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.   An interpretation that renders related provisions nugatory must be avoided;  each sentence must be read not in isolation but in light of the statutory scheme․’ ” (People v. Ramirez (1995) 33 Cal.App.4th 559, 563, 39 Cal.Rptr.2d 374, citations omitted.)

In our view, the failure to include in section 667, subdivision (d)(3)(D) those offenses “described in paragraph (1) or (2) as a felony” (see § 667, subd. (d)(3)(B)) can only be a drafting oversight.   There is simply no other rational explanation for the omission.   It would make no sense to require a prior offense to be listed in statute A-even if it was not listed in statute B-but then to bar use of the resulting adjudication because the adjudicated offense was not listed in statute B.   We will not presume the Legislature intended such a bizarre result.   Moreover, it would make no sense-and would frustrate the express intent of the three strikes law (see § 667, subd. (b))-to allow the use of juvenile adjudications as “strikes” but to permit only adults to incur a “strike” as the result of an offense listed in section 667.5, subdivision (c) or section 1192.7, subdivision (c).  Under these circumstances, we conclude appellant's juvenile adjudication met the requirements of section 667, subdivision (d)(3) and, hence, the trial court did not err in using it as a “strike” when calculating appellant's sentence.

II.-VI.**

DISPOSITION

The judgment is affirmed.   The sentence imposed is vacated and the matter remanded to the trial court for resentencing in accordance with the views expressed in this opinion.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise stated..  FN1. All statutory references are to the Penal Code unless otherwise stated.

2.   Appellant pleaded guilty to count three.   He received a jury trial on counts one and two, and a bifurcated court trial on the prior conviction allegations.

3.   As he raises only sentencing issues, we dispense with a statement of facts.

4.   Paragraph (1) of section 667, subdivision (d) includes, as prior convictions, “[a]ny offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state.”   Paragraph (2) describes those convictions in jurisdictions other than California which qualify as prior convictions under the three strikes law.

5.   Since the relevant portion of the three strikes initiative, section 1170.12, subdivision (b), is the same in all essential respects as the quoted portion of the legislative version of the three strikes law, our discussion will focus (as do the parties) on section 667.

6.   Welfare and Institutions Code section 707 currently reads, in pertinent 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․“(b) Subdivision (c) shall be applicable 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 one of the following offenses:“(1) Murder.“(2) Arson, as provided in subdivision (a) or (b) of Section 451 of the Penal Code.“(3) Robbery while armed with a dangerous or deadly weapon.“(4) Rape with force or violence or threat of great bodily harm.“(5) Sodomy by force, violence, duress, menace, or threat of great bodily harm.“(6) Lewd or lascivious act as provided in subdivision (b) of Section 288 of the Penal Code.“(7) Oral copulation by force, violence, duress, menace, or threat of great bodily harm.“(8) Any offense specified in subdivision (a) of Section 289 of the Penal Code.“(9) Kidnapping for ransom.“(10) Kidnapping for purpose of robbery.“(11) Kidnapping with bodily harm.“(12) Attempted murder.“(13) Assault with a firearm or destructive device.“(14) Assault by any means of force likely to produce great bodily injury.“(15) Discharge of a firearm into an inhabited or occupied building.“(16) Any offense described in Section 1203.09 of the Penal Code.“(17) Any offense described in Section 12022.5 of the Penal Code.“(18) Any felony offense in which the minor personally used a weapon listed in subdivision (a) of Section 12020 of the Penal Code.“(19) Any felony offense described in Section 136.1 or 137 of the Penal Code.“(20) Manufacturing, compounding, or selling one-half ounce or more of any salt or solution of a controlled substance specified in subdivision (e) of Section 11055 of the Health and Safety Code.“(21) Any violent felony, as defined in subdivision (c) of Section 667.5 of the Penal Code, which would also constitute a felony violation of subdivision (b) of Section 186.22 of the Penal Code.“(22) Escape, by the use of force or violence, from any county juvenile hall, home, ranch, camp, or forestry camp in violation of subdivision (b) of Section 871 where great bodily injury is intentionally inflicted upon an employee of the juvenile facility during the commission of the escape.“(23) Torture as described in Sections 206 and 206.1 of the Penal Code.“(24) Aggravated mayhem, as described in Section 205 of the Penal Code.“(25) Carjacking, as described in Section 215 of the Penal Code, while armed with a dangerous or deadly weapon.“(26) Kidnapping, as punishable in subdivision (d) of Section 208 of the Penal Code.“(27) Kidnapping, as punishable in Section 209.5 of the Penal Code.“(28) The offense described in subdivision (c) of Section 12034 of the Penal Code.“(29) The offense described in Section 12308 of the Penal Code.“(c) With regard to a minor 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 of the offenses 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 minor shall be presumed to be not a fit and proper subject to be dealt with under the juvenile court law unless the juvenile court concludes, based upon evidence, which evidence may be of extenuating or mitigating circumstances, that the minor would be amenable to the care, treatment, and training program available through the facilities of the juvenile court based upon an evaluation of each 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 offenses alleged in the petition to have been committed by the minor.Note 6-Continued“A determination that the minor is a fit and proper subject to be dealt with under the juvenile court law shall be based on a finding of amenability after consideration of the criteria set forth above, and findings therefor recited in the order as to each of the above criteria that the minor is fit and proper under each and every one of the above criteria․”

7.   To the extent appellant's contention touches upon ex post facto considerations, we reject it.   Reliance on a fact pertaining to an earlier crime to aggravate another crime does not constitute punishment for the former crime and, hence, does not violate double jeopardy or ex post facto principles.  (People v. Brown (1984) 156 Cal.App.3d 1131, 1135-1136, 203 Cal.Rptr. 141.)

8.   The information filed in the present case alleged that appellant was adjudged to have committed attempted robbery (§§ 211, 664).   However, the juvenile court petition, which was contained in People's exhibit number 6, “further alleged that at the time of the commission of the ․ offense, [appellant] was armed with a deadly weapon, to wit, a knife, within the meaning of Penal Code Section 12022(b).”   In 1979, at the time of the offense, section 12022 mandated imposition of an additional one-year term for any person who was armed, either personally or vicariously, with a firearm in the commission or attempted commission of a felony (§ 12022, subd. (a)), or for any person who personally used a deadly or dangerous weapon in the commission or attempted commission of a felony (id., subd. (b)).  (Stats.1977, ch. 165, § 91, p. 678.)   People's exhibit number 6 further shows appellant admitted the charges and was committed to the Youth Authority, with a maximum confinement of two years ten months, including one year for the section 12022, subdivision (b) allegation.   Since at that time section 12022, subdivision (b) could only be violated by personal use of a deadly weapon, as opposed to mere arming, it is apparent appellant was found to have committed attempted robbery involving the personal use of a deadly or dangerous weapon.   The trial court implicitly so found when it found to be true the “strike” allegation since, as we will explain, attempted robbery not involving the use of a deadly or dangerous weapon (assuming no firearm) cannot constitute a “strike.”   Appellant has not claimed, either in the trial court or on appeal, that he was prejudiced by the information's failure to allege the deadly weapon allegation, or that the section 12022, subdivision (b) allegation lacked a corpus or was not proven.

9.   Welfare and Institutions Code section 707, subdivision (b) is set out in footnote 6, ante.

FOOTNOTE.   See footnote *, ante.

MARTIN, Acting Presiding Justice.

STONE (WM. A.) and DIBIASO, JJ., concur.