Jovan B., In re

• Decision Date: 20 December 1993
• Docket Number: No. SO28697,SO28697
• Citation: 863 P.2d 673,25 Cal.Rptr.2d 428,6 Cal.4th 801
• Court: California Supreme Court
• Parties: , 863 P.2d 673 In re JOVAN B., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. JOVAN B., Defendant and Appellant.

Page 428

25 Cal.Rptr.2d 428

6 Cal.4th 801, 863 P.2d 673

In re JOVAN B., a Person Coming Under the Juvenile Court Law.

The PEOPLE, Plaintiff and Respondent, v. JOVAN B., Defendant and Appellant.

No. SO28697.

Supreme Court of California,

In Bank.

Dec. 20, 1993.

[6 Cal.4th 806] [863 P.2d 674] Brad Bristow, Cent. Cal. Appellate Project, Sacramento, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Asst. Atty. Gen., Roger E. Venturi and George M. Hendrickson, Deputy Atty. Gen., for plaintiff and respondent.

BAXTER, Justice.

Section 12022.1 of the Penal Code increases the period of imprisonment for a felony if the offender committed it while free on bail or his own recognizance (O.R.) pending resolution of earlier felony charges of which he is ultimately found guilty. We granted review to decide whether this "bail/O.R." enhancement applies in juvenile court proceedings under section 602 of the Welfare and Institutions Code so as to extend the maximum period of "physical confinement" of a juvenile ward. (See Welf. & Inst.Code, §§ 726, 731, 1766, subd. (b).) Unlike the Court of Appeal, we conclude that section 12022.1 is applicable in the juvenile context. We will therefore reverse in part the judgment of the Court of Appeal.

FACTS

On July 1, 1991, the Madera County District Attorney filed a juvenile court petition alleging that Jovan B., a minor then four weeks shy of his fifteenth birthday (hereafter the minor), came within the provisions of Welfare and Institutions Code section 602 ¹ because he had committed a felony, residential burglary. (Pen.Code, §§ 459, 460, subd. (a).) At a detention hearing on July 2, the court ordered the minor released pending trial under "[h]ouse arrest/electronic monitoring."

A contested jurisdictional hearing occurred on August 9, 1991. The court sustained the petition. (The record includes no transcript of the August 9 hearing. The probation report indicates that the minor entered the The same day, August 9, a second Welfare and Institutions Code section 602 petition was filed alleging that in violation of Penal Code section 140, the minor had threatened Benjamin for assisting the authorities in the burglary case. On August 12, the court ordered the minor detained in juvenile hall pending adjudication of this new petition.

home of a friend, Benjamin S., and stole Benjamin's Los Angeles Raiders jacket.)

On August 26, the court held a dispositional hearing on the burglary petition and a jurisdictional hearing on the petition alleging threats against a witness. Without objection, the latter petition was amended to assert under Penal Code section 12022.1 that the threats against Benjamin occurred while the minor was out of custody pending trial on the burglary.

Evidence at the hearing indicated that on August 7, 1991, the minor and another juvenile, Anthony O., who was also accused in the burglary, approached Benjamin, who was scheduled to testify at the trial of that matter. Anthony extended a wooden dowel toward Benjamin and said, "Fuck you, bitch." Both the minor and Anthony then declared they would "kick [Benjamin's] ... ass." The minor later told a responding officer he was going back to get Benjamin for opening his mouth about a jacket in the minor's possession; the minor said he had gotten into trouble about the jacket.

At the conclusion of proceedings on August 26, the court found true both the Penal Code section 140 violation and the bail/O.R. allegation under Penal Code section 12022.1. The matter was set for later disposition. Meanwhile, in the burglary case, the court declared the minor a court ward. It placed him on probation with conditions, including a 30-day commitment to juvenile hall (including 21 days already served), 30 days' "house arrest" with "electronic surveillance," and a $100 restitution fine.

On September 19, the court entered a dispositional order in the witness-threatening matter. It deemed the violation of Penal Code section 140 a felony ² and confirmed the "special allegation per [Penal Code section] 12022.1." The court continued the minor as a court ward, ordered an additional 30 days of juvenile hall confinement with credits, again imposed 30 days of electronically monitored house arrest, and specified another $100 restitution fine.

The minor appealed the August 26 jurisdictional order and the September 19 dispositional order. He urged that the sentence enhancement provided by Penal Code section 12022.1 for crimes committed while on bail or O.R. is inapplicable to juvenile proceedings because the statute speaks exclusively in adult terms of conviction, sentencing, and prison. The Court of Appeal agreed. It reversed the Penal Code section 12022.1 finding and remanded for appropriate modification of the September 19 order. In all other respects, the judgment was affirmed. We granted the People's petition for review.

DISCUSSION

Penal Code section 12022.1 is part of the Determinate Sentencing Act (DSA) applicable to adult offenders. The statute provides that if one commits a felony while released on bail or O.R. pending final resolution of an earlier felony charge, he shall serve "two years in state prison" additional and consecutive to any other prison term imposed for either offense. If he is "convicted" and "sentenced" for the later offense before "conviction" for the earlier offense occurs, imposition of the enhancement shall be stayed. The stay shall be lifted by the court hearing the earlier offense at the time of sentencing in that case. If the defendant is acquitted of the earlier offense, the stay becomes permanent. Thus, the enhancement cannot be imposed unless the defendant is ultimately "convicted" of both offenses. (See People v Juvenile courts have broader dispositional discretion over offenders within their jurisdiction than do adult courts directly subject to the DSA. (See Welf. & Inst.Code, § 725 et seq.) The DSA nonetheless has indirect application in juvenile proceedings. Whenever the juvenile court orders a ward confined apart from his parent or guardian, or commits him to the California Youth Authority (CYA), the order must specify that he "may not be held ... for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court." (Welf. & Inst.Code, § 726; see id., §§ 731, 1766, subd. (b).) For a single felony offense, this theoretical " 'maximum term of imprisonment' " is the longest adult term for that offense, as described in Penal Code section 1170, subdivision (a)(2), "plus enhancements which must be proven if pled." (Welf. & Inst.Code, § 726, 3d par.)

[863 P.2d 676] McClanahan (1992) 3 Cal.4th 860, 869, 12 Cal.Rptr.2d 719, 838 P.2d 241.) ³

Moreover, the juvenile court may aggregate the period of physical or CYA confinement for multiple felony counts or petitions, including previously sustained petitions. In such cases, "the 'maximum term of imprisonment' shall be specified in accordance with subdivision (a) of Section 1170.1 of the Penal Code." (Welf. and Inst. Code § 726, 4th par.) Among other things, Penal Code section 1170.1, subdivision (a) directs how enhancements shall be included in the "aggregate term of imprisonment" of an adult offender sentenced to consecutive terms for multiple felonies.

So far, the bail/O.R. enhancement has had no actual effect on the disposition of this case. However, the enhancement could have future significance in at least two circumstances.

First, even though the minor is not now confined for his offenses to date, further transgressions could result in a supplemental petition under Welfare and Institutions Code section 777 seeking modification of the current disposition on grounds that it "has not been effective in the rehabilitation or protection of the minor." If the court sustains such a petition and decides further confinement or Second, the enhancement will also count toward the maximum period of confinement or commitment in a future section 602 proceeding if the court then elects to "aggregate" the minor's current and subsequent offenses. (See discussion, ante, at p. 431 of 25 Cal.Rptr.2d, p. 676 of 863 P.2d.) ⁵

CYA commitment is then warranted, the enhancement will be included in the statutory maximum period of such confinement or commitment. ⁴

If the minor were committed to CYA in either instance, his actual term, within the statutory maximum, would be governed by CYA guidelines. Minors most often do not serve their maximum terms, but the statutory maximum may affect both parole eligibility and the extent to which actual confinement may be prolonged for disciplinary reasons. (See Cal. Code Regs., tit. 15, §§ 4945(i)(8), (11), (14), 4955(b), 4961(c), 4983.)

The Court of Appeal concluded that by its plain terms, the bail/O.R. enhancement statute cannot apply toward a juvenile ward's maximum confinement or commitment because the statute speaks in terms of "information[s]," "indictment[s]," "complaint[s]," "preliminary hearing[s]," and "sentencing," all of which are foreign to juvenile procedure. In particular, the Court of Appeal noted, the enhancement requires "conviction" of both the "bailed" and "while-on-bail" offenses. (See Pen. Code, § 12022.1, subds. (d-g).) The court reasoned that because "[a]n order adjudging a minor to be a ward of the juvenile court shall not be deemed a conviction of a crime for any purpose ..." (Welf. & Inst.Code, § 203), a juvenile offender cannot meet the criteria for application of the enhancement.

The minor presses similar arguments here, but we conclude they lack merit. The approach taken by the minor and the Court of Appeal overlooks the plain language of another statute, Welfare and Institutions Code section 726, which provides that a juvenile ward's maximum confinement or commitment shall be a time...