In re N.D.

• Decision Date: 21 October 2008
• Docket Number: No. F053397.,F053397.
• Citation: 167 Cal.App.4th 885,84 Cal. Rptr. 3d 517
• Court: California Court of Appeals Court of Appeals
• Parties: In re N.D., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. N.D., Defendant and Appellant.

167 Cal.App.4th 885

84 Cal. Rptr. 3d 517

In re N.D., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent, v. N.D., Defendant and Appellant.

No. F053397.

Court of Appeals of California, Fifth District.

October 21, 2008.

CERTIFIED FOR PARTIAL PUBLICATION^*

Arthur L. Bowie, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Leanne L. LeMon, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

WISEMAN, Acting P. J.

The main issue in this case concerns amendments to Welfare and Institutions Code sections 731 and 733 that took effect on September 1, 2007.¹ Under these amendments, a juvenile court can commit a ward to the Division of Juvenile Facilities (DJF) (formerly the California Youth Authority) only if the petition upon which the ward is committed is for certain enumerated offenses. We hold that these amendments do not apply to a disposition that occurred before September 1, 2007. The common law rule requiring application of statutes that mitigate punishment to all cases not yet final on their effective dates is inapplicable. The amendments did not mitigate punishment, but only limited the places in which a ward can be confined. Since the juvenile court committed minor N.D. to the DJF before September 1, 2007, he is not entitled to reversal of the commitment.

In the unpublished portion of this opinion, we conclude that it is unnecessary to reach N.D.'s contention that another recently enacted law, section 731.1, is unconstitutional. Finally, we reject N.D.'s claim that the juvenile court abused its discretion in committing him to the DJF. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORIES

N.D., then 15 years old, entered a garage in Fresno and took a bicycle on September 17, 2005. The district attorney filed a juvenile wardship petition pursuant to section 602 alleging one felony count of first degree burglary. (Pen. Code, § 459.) The juvenile court found the allegation true based on N.D.'s admission and determined that the maximum period of confinement was six years. The court deferred entry of judgment pursuant to section 790.

Within less than three months, N.D. was found in possession of marijuana at school on November 14, 2005, and again on December 1, 2005. The district attorney filed a wardship petition alleging two misdemeanor counts of possessing marijuana on school grounds. (Health & Saf. Code, § 11357, subd. (e).) N.D. admitted to one count, and the court terminated his deferred-entry-of-judgment status. It imposed probation and committed him to the Elkhorn Correctional Facility boot camp for a period not to exceed 365 days. N.D. entered the boot camp program on April 28, 2006.

On December 6, 2006, the probation officer filed a petition in the juvenile court pursuant to section 777 alleging that, while in boot camp, N.D. committed numerous violations of the terms of his probation. He repeatedly violated the boot camp's rules, refused to follow staff instructions, and admitted to making a canteen of "pruno," a homemade fermented drink. A probation report supporting the petition stated, among other things, that N.D. admitted to using drugs while at home on a pass and absconded while on another pass. After N.D. admitted to the court that he made the pruno, the court removed him from the boot camp program. It committed him to the Elkhorn Correctional Facility Delta program or, if N.D. failed the required mental and physical screenings, to the Juvenile Justice Campus. N.D. was found to be ineligible for the Delta program because he was taking psychotropic medication.

On January 31, 2007, while in a classroom at the Juvenile Justice Campus, N.D. hit another ward in the face. The victim did not know N.D. N.D. explained that the victim had been "`mean mugging'" him. The district attorney filed a wardship petition alleging a misdemeanor battery on school property. (Pen. Code, § 243.2, subd. (a)(1).) N.D. admitted to simple misdemeanor battery. (Pen. Code, § 242.)

The probation officer, stating that a DJF commitment would be premature, recommended that the court impose an extended commitment to the Juvenile Justice Campus. The court's view, however, was that the battery showed N.D. was a danger to the other wards, and his history as described in the probation report showed he had failed to respond to less restrictive placements. It committed him to DJF² and stated that the maximum period of confinement was six years two months, consisting of six years for the burglary and two months for the battery.

DISCUSSION

I. Amended sections 731 and 733

N.D. committed his latest offense, the battery, on January 31, 2007. On April 26, 2007, the court accepted N.D.'s admission that he committed battery and committed him to DJF on May 30, 2007. On September 1, 2007, amendments to sections 731 and 733 took effect. (Stats. 2007, ch. 175, §§ 19, 22, 37.) Section 731 provides that the juvenile court can commit a ward to DJF "if the ward has committed an offense described in subdivision (b) of Section 707 and is not otherwise ineligible for commitment to the division under Section 733." Section 733 provides that a ward of the juvenile court shall not be committed to DJF if "the most recent offense alleged in any petition and admitted or found to be true by the court is not described in subdivision (b) of Section 707, unless the offense is a sex offense set forth in paragraph (3) of subdivision (d) of Section 290 of the Penal Code." None of the offenses alleged in any of the petitions against N.D. were described in section 707, subdivision (b), and none were sex offenses. N.D. argues that the amendments should apply to him—and his DJF commitment therefore should be reversed—because his case was still pending on appeal when the amendments took effect.

(1) His argument is based on a common law doctrine embraced by the California Supreme Court in In re Estrada (1965) 63 Cal.2d 740 [48 Cal.Rptr. 172, 408 P.2d 948]. In June of 1963, Estrada escaped from the California Rehabilitation Center. In September of that year, statutory amendments became effective under which the minimum preparole sentence for a nonviolent escape was reduced. In October, Estrada was convicted of escape. After he was captured and returned and the addiction proceedings terminated, the Adult Authority continued to hold him pursuant to the former law on escapes. (Id. at pp. 742-743.) In a habeas corpus proceeding, the Supreme Court ordered Estrada's sentence for escape to be fixed as provided in the amended statutes. (Id. at p. 751.) The court explained: "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final." (In re Estrada, supra, 63 Cal.2d at p. 745.) The Legislature can provide the contrary by including a saving clause if it wishes. The rule, therefore, is this: "[W]here the amendatory statute mitigates punishment and there is no saving clause, ... the amendment will operate retroactively so that the lighter punishment is imposed" in all cases in which judgment was not yet final when the amendment took effect. (In re Estrada, supra, 63 Cal.2d at p. 748.) Cases in which judgment is not yet final include those in which a conviction has been entered and sentence imposed but an appeal is pending when the amendment becomes effective. (People v. Babylon (1985) 39 Cal.3d 719, 722 [216 Cal.Rptr. 123, 702 P.2d 205]; People v. Figueroa (1993) 20 Cal.App.4th 65, 70 .) The Estrada rule has been applied to juvenile delinquency judgments. (In re Aaron N. (1977) 70 Cal.App.3d 931, 938 .)

(2) We hold that the rule of Estrada does not apply to this case. The amendments to sections 731 and 733 do not mitigate any punishment, for they do not reduce the amount of time any juvenile offender is confined. Instead, they limit the places in which juveniles committing certain offenses can be confined. Nothing in the statutes indicates an intention on the part of the Legislature to reduce the severity of punishment for any offense. The parties have not pointed to anything in the legislative history reflecting this intention and we have found nothing in our own research that does so.

The amendments were enacted as part of chapter 175 of the Statutes of 2007 in order to make "necessary statutory changes to implement the Budget Act of 2007 ...." (Stats. 2007, ch. 175, § 38.) A report of the California Little Hoover Commission explains the budget impact. To settle a lawsuit brought on behalf of inmates of state juvenile facilities, the state entered into a consent decree in November of 2004. The cost of compliance with the consent decree proved to be high: "Realizing the state could not afford to comply with the ... consent decree, in 2007, policy-makers acted to reduce the number of youth offenders housed in state facilities by enacting realignment legislation which shifted responsibility to the counties for all but the most serious youth offenders. This major step had long been recommended by youth advocates and experts, and by this Commission in 1994 and 2005, as many counties had demonstrated they were more effective and efficient in managing and rehabilitating youth offenders." (Little Hoover Com., Juvenile Justice Reform: Realigning Responsibilities (July...