IN RE: CHRISTOPHER R. (1992)

We decide in this appeal that the juvenile court acted within its discretion in sending the minor Christopher R. to the California Youth Authority (YA) for the extended term as provided by Welfare and Institutions Code,2 section 1769.³  We also hold that Christopher's admission that he committed robbery while being vicariously armed (Pen.Code, § 12022, subd. (a)) ⁴ brings him within the meaning of section 707, subdivision (b)(3) which pertains to minors 16 years of age or older who commit “[r]obbery while armed with a dangerous or deadly weapon.”   We therefore affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

I

The juvenile court entered a true finding on Christopher's negotiated admission that he committed robbery while vicariously armed with a firearm (Pen.Code, §§ 211, 12022, subd. (a)).  The court dismissed an allegation of personal firearm use (Pen.Code, § 12022.5;  and (with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754)) charges of unlawfully taking a vehicle (Veh.Code, § 10851) while armed with and personally using a firearm and residential burglary (Pen.Code, § 459).

II

In February 1991 Christopher Sisco drove to the Bank of Commerce to make a night deposit for his employer.   As he was carrying two bags of money from his truck to the night depository, he was stopped at gunpoint by Long N. Long pointed a revolver at Sisco's stomach and demanded the money, saying, “Give me all your money or I'll shoot you where you stand.”   Sisco gave him the cash.

Christopher, who was nearly 17 years old at this time, was waiting nearby, got into Sisco's truck with Long and drove away.   The two minors drove around the corner, past a third companion, Vincent D., who was waiting in a getaway car.   Vincent followed them to a nearby location where Christopher left Sisco's truck.   The three split the money and Christopher, Vincent, and their friend Chris G. went to Hawaii for a week.   According to Christopher, the robbery was Long's idea and the gun was not loaded.

In March 1991 Christopher, Long, and Vincent went to an apartment where Long said a relative lived.   Vincent broke a window and they entered.   Christopher stayed downstairs with Vincent while Long went upstairs.   Christopher later learned Long had taken jewelry and money from the apartment.

DISCUSSION

I–II *

III

Section 1769, subdivision (b) provides for an extended YA commitment for persons found to be in violation of any of the offenses listed in subdivision (b) of section 707.   Section 707, subdivision (b)(3) specifies a “[r]obbery while armed with a dangerous or deadly weapon” as one of the offenses justifying extended commitment.   Here Christopher contends subdivision (b)(3) does not apply to him because “armed” must be interpreted to mean “personally” rather than “vicariously” armed.   We disagree.

Our interpretive task is guided by several well-established principles.   The scope of a statutory provision “should be determined with reference to the whole system of law of which it is a part so that all may be harmonized and have effect.”  (Travelers Indemnity Co. v. Gillespie (1990) 50 Cal.3d 82, 100, 266 Cal.Rptr. 117, 785 P.2d 500.)   We must avoid construction making some words surplusage.  (State of South Dakota v. Brown (1978) 20 Cal.3d 765, 776, 144 Cal.Rptr. 758, 576 P.2d 473.)  “When different language is used in the same connection in different parts of a statute it is to be presumed the Legislature intended a different meaning and effect.  [Citation.]”  (In re Connie M. (1986) 176 Cal.App.3d 1225, 1240, 222 Cal.Rptr. 673.)

The facial ambiguity to be resolved is whether the Legislature intended that “armed” include persons who were only vicariously armed.   For assistance we turn first to other portions of the same statute for contextual clues.   Significantly, section 707, subdivision (b)(18) specifies “[a]ny felony offense in which the minor personally used a weapon listed in subdivision (a) of Section 12020 of the Penal Code.”  (Emphasis added.)   While it is true there is a difference between using a weapon and simply being armed, the Legislature's use of the adverb “personally” indicates an awareness of the ambiguity which can arise from resort to either the word “armed” or “use” without qualification.   Having specified “personal” use in subdivision (b)(18), we must assume that use of either term without qualification was intended to convey a broader meaning.

Christopher relies on the fact that in Penal Code section 12022, subdivision (a), the Legislature has specified that the one-year enhancement for being “armed with a firearm” in the commission of a felony applies “whether or not such person is personally armed with a firearm.”   He suggests this indicates a legislative understanding that “armed” mean “personally armed” unless a contrary intent is specified.   If anything, however, we draw the opposite inference.   Subdivision (a) of section 12022 was not drafted to apply to a person “either personally or vicariously armed.”   Instead, the subdivision uses the word “armed” and then defines that term to include vicarious arming;  later subdivisions in the same section address personal arming only (subdivision (c)) and vicarious arming only (subdivision (d)).  (See People v. Superior Court (Pomilia) (1991) 235 Cal.App.3d 1464, 1469, 1 Cal.Rptr.2d 386.)   Thus, the term “armed” as used in section 12022, subdivision (a) includes vicarious as well as personal liability.   We would think that when the same term is used in a different but related statute, the Legislature likely assumed the same definition would apply, at least in the absence of a different expressed intent.

In any event, the history of section 12022 explains the need for the more exacting definition there.   Before the 1977 amendment to section 12022 (see Stats.1977, ch. 165, § 91, p. 678), a series of cases had interpreted the statute to apply only to a defendant who was personally armed.  (See, e.g., People v. Walker (1976) 18 Cal.3d 232, 241, 133 Cal.Rptr. 520, 555 P.2d 306;  People v. Hicks (1971) 4 Cal.3d 757, 766, fn. 4, 94 Cal.Rptr. 393, 484 P.2d 65.)   Clarifying its intent with respect to a statute with contrary interpretive precedent hardly suggests an inference of a different legislative intent as to a different statute with no contrary precedent.

Under these circumstances, we conclude the court did not err in finding that Christopher's vicarious arming satisfied the requirements of section 707, subdivision (b)(3).

DISPOSITION

Order affirmed.

FOOTNOTES

FN2. All statutory references are to the Welfare and Institutions Code unless otherwise specified..  FN2. All statutory references are to the Welfare and Institutions Code unless otherwise specified.

3.   Section 1769, subdivision (b) states:  “Every person committed to [YA] by a juvenile court who has been found to be a person described in Section 602 by reason of the violation of any of the offenses listed in subdivision (b) of Section 707 shall be discharged upon the expiration of a two-year period of control or when the person reaches his or her 25th birthday, whichever occurs later, unless an order for further detention has been made․”

4.   Penal Code section 12022, subdivision (a) states:“Except as provided in subdivision (c) and (d), any person who is armed with a firearm in the commission or attempted commission of a felony shall, upon conviction of such felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of one year, unless such arming is an element of the offense of which he or she was convicted.   This additional term shall apply to any person who is a principal in the commission or attempted commission of a felony if one or more of the principals is armed with a firearm, whether or not such person is personally armed with a firearm.”

FOOTNOTE.   See footnote 1, ante.

WIENER, Associate Justice.

KREMER, P.J., and NARES, J., concur.