Bernardino S., In re

• Decision Date: 13 March 1992
• Docket Number: No. A053106,A053106
• Citation: 5 Cal.Rptr.2d 746,4 Cal.App.4th 613
• Court: California Court of Appeals Court of Appeals
• Parties: In re BERNARDINO S., a Person Coming Under the Juvenile Court Law. The PEOPLE of the State of California, Plaintiff and Respondent, v. BERNARDINO S., Defendant and Appellant.

Page 746

5 Cal.Rptr.2d 746

4 Cal.App.4th 613

In re BERNARDINO S., a Person Coming Under the Juvenile Court Law.

The PEOPLE of the State of California, Plaintiff and Respondent, v. BERNARDINO S., Defendant and Appellant.

No. A053106.

Court of Appeal, First District, Division 2, California.

March 13, 1992.

Law Offices of Eric Liberman, Eric Liberman, Burlingame, First Dist. Appellate Project, San Francisco, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Laurence K. Sullivan, Supervising Deputy Atty. Gen., David Lew, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

BENSON, Associate Justice.

Appellant Bernardino S. was charged in a petition under Welfare and Institutions Code section 602 with performing a lewd and lascivious act upon a child under the age of 14. Appellant admitted the allegations and was adjudged a ward of the court. The court ordered him, among other things, to register as a sex offender under Penal Code section 290. He contends that section 290 was inapplicable to him by its terms, that the court lacked the power to require him to register, and that even if the court had some discretion in that regard its discretion was abused here. We agree with the first and second contentions and strike the registration requirement on that basis, without reaching the third contention.

BACKGROUND

The petition charged appellant with conduct proscribed by Penal Code section 288, subdivision (b), i.e., a lewd and lascivious act, by means of force or fear, upon a child under the age of 14. The petition alleged that the conduct took place in 1985, when appellant would have been 17 or 18 years old. According to reports by the probation officer, the victim stated that in 1985, appellant locked her in a bedroom, undressed her, and attempted to penetrate her. He told her he would slap her face if she screamed, and would hurt her real bad if she told her mother. He was unable to penetrate her. The probation officer wrote that appellant was only 15 or 16 when the offense occurred. ¹ Appellant had engaged in no other delinquent behavior before or since. The officer found him a "very immature and naive youth," who displayed "the direct opposite of the definition of criminal sophistication." A court-appointed psychiatrist opined that appellant was "not a true pedophile." Rather, "this present episode can best be understood as an impulsive piece of behavior[,] without judgement, coming from an immature[,] generally rigidly controlled young man.... I feel that from what I know[ ] he is not in any way a danger to the public or to children." A clinical psychologist also reported that he "could find no indication of pedophilic interests, nor of personality disorder of the type which would lead to such a behavior." The probation officer recommended that appellant be adjudged a ward of the court and placed in his parents' home under the supervision of the probation officer.

At a hearing in February 1991 appellant admitted the allegations of the petition. The court issued a dispositional order largely adopting the recommendations of the probation officer, but including the following provision: "Subject shall register as a sex offender pursuant to 290 PC." During the hearing the court expressed the view that it was "required" to impose such a requirement. Appellant's attorney contended otherwise and filed a motion to delete the registration requirement. The court denied the motion. This timely appeal followed.

ANALYSIS

A. Section 290 and Juvenile Court Law

Prior to 1986, Penal Code section 290 required registration only by persons who had been "convicted" of specified sex offenses. ² Under the juvenile court law, a person adjudged a ward of the court has not been "convicted" of anything. Welfare and Institutions Code section 203 provides that a wardship adjudication "shall not be deemed a conviction of a crime for any purpose, nor shall a proceeding in the juvenile court be deemed a criminal proceeding."

It is conceivable that subdivision (b) of section 290, as then in effect, might have been construed to require registration by a juvenile offender who had been "confined" in an "institution" as a result of having committed one of the enumerated offenses. It is more likely, however, that subdivision (b) was intended not to expand the class of persons subject to the registration requirement, but merely to prescribe a procedure for giving notice of that requirement to persons described in subdivision (a). It might also be supposed that applicability to juvenile wards is suggested by the reference to the Youth Authority in subdivision (g). That reference, however, is best explained as anticipating situations where a juvenile might be committed to the Youth Authority after trial and conviction in a criminal court. (See Welf. & Inst.Code, §§ 707.2, 1731.5, subds. (a)(1), (c).)

The Legislature's own interpretation of the statute as applied to juvenile wards became apparent when, in 1985, it amended section 290 by adoptinga new subdivision (d) expressly dealing with wards of the juvenile court. ³ Extrinsic legislative materials strongly indicate that the pre-amendment statute had no application whatever to juvenile wards: "Although persons, including remanded minors, committed to Youth Authority from criminal court for specified sex offenses must register under current law, juvenile court commitments do not currently have to register no matter how violent their offense." (Assem. Office of Research, 3d reading analysis of Sen.Bill No. 888 (1985-1986 Reg. Sess.) as amended Sept. 12, 1985, p. 2.) The Legislature viewed the amendment as an expansion of the statute's sweep to persons previously excluded. (Legis.Counsel's Dig., Sen. Bill No. 888, 4 Stats. 1985 (Reg.Sess.), Summary Digest, p. 553 ["expanding the category of persons to which a criminal penalty is applicable"]; 3d reading analysis, supra, p. 1 ["expands application of the registration requirements"].)

Given this legislative interpretation of the pre-1986 statute and the complete absence of contrary authority, it seems clear that the sole statutory basis for requiring juvenile wards to register as sex offenders is the 1985 amendments themselves. ⁴ We turn now to the question whether those amendments can be properly understood as bringing appellant within the statute.

B. Scope of Statutory Requirement

Appellant contends that under section 290, a juvenile ward must register as a sex offender only if he or she has been committed to the Youth Authority. Since he was never so committed, he asserts, it was error to require him to register. This contention has merit.

By its plain words, section 290 requires registration of juvenile wards only when they are discharged or paroled from the Youth Authority after having been committed for one of the enumerated offenses. When the language of a statute is clear there is no occasion for construction and courts should not indulge in it. (In re Keith T. (1984) 156 Cal.App.3d 983, 986, 203 Cal.Rptr. 112.) The plain language of section 290 says that it applies to a class of juveniles which does not include appellant. From this it follows that the statute does not require appellant's registration as a sex offender.

Respondent, however, cites the rule that a statute will not be applied literally where to do so would lead to absurdity or a result contrary to legislative intent. (See People v. Davis (1981) 29 Cal.3d 814, 828-829, 176 Cal.Rptr. 521, 633 P.2d 186; People v. Barksdale (1972) 8 Cal.3d 320, 334, 105 Cal.Rptr. 1, 503 P.2d 257; People v. Hannon (1971) 5 Cal.3d 330, 335, 96 Cal.Rptr. 35, 486 P.2d 1235.) Respondent attempts to bring section 290, as applied to juveniles, within this rule by suggesting that there is no rational basis for distinguishing between wards committed to the Youth Authority and other juvenile sex offenders, or between wards not sentenced to the Youth Authority and adults placed on probation.

This argument rests on nothing more than respondent's ipse dixit assertions, and for that reason alone is entirely inadequate to support a departure from the statute's plain meaning. A legislative enactment is presumptively valid and a legislative classification is presumptively intentional and deliberate. On the face of it the classification here has a rational function. The Legislature recognized the "stigma" associated with sex-offender registration, and acknowledged some tension between registration and the rehabilitative goals of the juvenile court law. For this reason the 1985 amendments provided that the requirement would be lifted, and the records of registration expunged, when the affected juvenile reached age 25. (Pen.Code, § 290, subds. (d)(3), (4).) This provision was explained by the sponsor as follows: "[T]he premise for maintenance of a separate judicial system for juvenile offenders is that the prospects for rehabilitation are greater. A registration system under which the duty of juveniles to register ends at age 25 will serve the goal of public protection while allowing rehabilitated minors to be free from the stigma of registration." (3d reading analysis, supra, p. 2.) This same goal--balancing public protection against juvenile rehabilitation--is served by the restriction of the registration requirement to Youth Authority committees: "The bill's sponsor, Department of the Youth Authority, contends that registration enables law enforcement to keep track of potentially dangerous sex offenders residing in their jurisdiction. [p].... Although violent or repeat offenders over age 16 are often remanded to adult court, juvenile sex offenders under age 16 remain under the jurisdiction of the juvenile court." (3d reading analysis, supra, p. 2, emphasis added.)

In other words, the Legislature consciously sought to require registration only of those "violent or repeat offenders" whose...