People v. H.N. (In re H.N.)
| Citation | 76 Cal.App.5th 962,292 Cal.Rptr.3d 39 |
| Decision Date | 29 March 2022 |
| Docket Number | 2d Juv. No. B313698 |
| Parties | IN RE H.N., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. H.N., Defendant and Appellant. |
Mary Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
By passing Proposition 83 ("Jessica's Law"), did the voters intend to continue to classify the crime of possession of child pornography as a "wobbler" so that juvenile courts could continue to declare it as either a felony or a misdemeanor? We conclude they did.
H.N., a minor, appeals an order of the juvenile court sustaining a Welfare and Institutions Code section 602 petition with a finding that he possessed child pornography. ( Pen. Code, § 311.11, subd. (a).) We conclude, among other things, that the juvenile court erred by not making an express finding per Welfare and Institutions Code section 702 whether the Penal Code section 311.11, subdivision (a) offense was a felony or a misdemeanor. We strike the court's maximum term of confinement finding because H.N. was placed on home probation. We remand to the juvenile court to make a finding whether the offense is a felony or a misdemeanor, but otherwise affirm.
H.K. testified that she had a "friendship" relationship with H.N. In October 2019, H.N. came over to her house. H.K. was 15 years old. H.N. was also 15 years old. H.N. and H.K. had "consensual" sexual "intercourse."
H.N. videotaped this sexual encounter without H.K.’s knowledge or consent.
The People filed a Welfare and Institutions Code section 602 petition alleging H.N. had violated " PENAL CODE [section] 311.11(a), a Felony ." (Italics added.) The juvenile court sustained the petition and found H.N. possessed child pornography. The court placed H.N. on home probation. It found a maximum term of confinement to be three years.
H.N. contends the juvenile court erred by not making a required Welfare and Institutions Code section 702 finding whether the Penal Code section 311.11, subdivision (a) offense was a felony or a misdemeanor.
The People contend a Welfare and Institutions Code section 702 finding was not required because the possession of child pornography offense is a felony, not a wobbler or a misdemeanor.
Welfare and Institutions Code section 702 provides, in relevant part, "If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony." A Welfare and Institutions Code section 702 finding is mandatory where the offense is a wobbler, and, in appropriate cases, a remand may be required for the juvenile court to make the finding. ( In re Manzy W. (1997) 14 Cal.4th 1199, 1209, 60 Cal.Rptr.2d 889, 930 P.2d 1255.)
Penal Code Section 311.11, Subdivision (a)1
Section 311.11, subdivision (a) provides, in relevant part, "Every person who knowingly possesses or controls any matter ... that contains or incorporates in any manner, any film or filmstrip, the production of which involves the use of a person under 18 years of age, knowing that the matter depicts a person under 18 years of age personally engaging in or simulating sexual conduct ... is guilty of a felony and shall be punished by imprisonment in the state prison, or a county jail for up to one year , or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both the fine and imprisonment." (Italics added.)
The juvenile court sustained the petition. It neglected to declare the section 311.11 offense to be a felony or a misdemeanor.
H.N. notes the current statute was an amendment of a prior 2006 statute which was a wobbler, allowing the crime to be sentenced as a felony or a misdemeanor. ( § 311.11.) The prior law listed the punishment as either a state prison term or a county jail term of one year. He claims the current statute "retained a county jail term of one year" that "strongly suggests" an intent "to make the section 311.11, subdivision (a) offense a wobbler." We agree.
When an offense is punishable by either a state prison or county jail term, it is normally considered a "wobbler," meaning that it can be either a felony or a misdemeanor. ( In re Grant (2014) 58 Cal.4th 469, 475, fn. 3, 167 Cal.Rptr.3d 401, 317 P.3d 612.) Section 311.11 contains the alternative sentencing language of a wobbler. In Grant , the court did not decide whether this offense was a wobbler because Grant, an adult, pled guilty to a felony. But in dicta it said there appeared to be a "potential anomaly" because the Legislature designated this offense "only as a felony" when it also maintained the alternative sentencing language in the statute. ( Grant , at p. 475, fn. 3, 167 Cal.Rptr.3d 401, 317 P.3d 612.)
In People v. Westerfield (2019) 6 Cal.5th 632, 683, footnote 6, 243 Cal.Rptr.3d 18, 433 P.3d 914, our Supreme Court said the 2006 version of section 311.11 was a wobbler. The People note the court also said the current 2007 version of this statute designates this offense "a felony." ( Westerfield , p. 683, fn. 6, 243 Cal.Rptr.3d 18, 433 P.3d 914.) But the People's reliance is misplaced. In Westerfield , the court made this brief reference in a footnote. The defendant was convicted under the former version of this statute. The court was not asked to decide, nor did it decide, whether the current statutory offense could also be interpreted to be a wobbler. We "do not treat cases" as "authority" for positions not considered on appeal. ( People v. Fontenot (2019) 8 Cal.5th 57, 73, 251 Cal.Rptr.3d 341, 447 P.3d 252.)
The People highlight a phrase in section 311.11 mentioning "felony" and claim it is dispositive. We do not view that phrase in isolation. ( People v. Nelson (2011) 200 Cal.App.4th 1083, 1098, 132 Cal.Rptr.3d 856.) We view the entire language of the statute in context. ( Ibid . ) The label placed on a crime may not be dispositive because a crime may be a wobbler based on "the punishment prescribed." ( People v. Park (2013) 56 Cal.4th 782, 789, 156 Cal.Rptr.3d 307, 299 P.3d 1263.)
The Legislature added the phrase "is guilty of a felony" to the current 2007 version of section 311.11 after the voters passed Proposition 83. (Stats. 2007, ch. 579, § 38.) But it also included the alternative sentencing language of the prior 2006 statute.
It is reasonable to conclude the lawmakers and the electorate: 1) intended to maintain the wobbler status of this offense, and 2) intended "the characterization of the crime" would be "dependent upon the actual punishment imposed." ( People v. Terry (1996) 47 Cal.App.4th 329, 332, 54 Cal.Rptr.2d 769.)
Because the amendment of section 311.11 occurred due to the passage of Proposition 83 (the Sexual Predator Punishment and Control Act), we apply the following rules: 1) " ‘When interpreting statutory provisions enacted by voter initiative or legislative action, our primary purpose is to ascertain and effectuate the intent of the enactors’ " ( In re E.G. (2016) 6 Cal.App.5th 871, 876, 211 Cal.Rptr.3d 580 ); and 2) " ‘[t]o determine this intent, we consider the plain, commonsense meaning of the language used, and construe the language in the context of the overall enactment.’ " ( Ibid . ) A relevant factor in determining the voters’ intent is the ballot argument in favor of the proposition. ( C-Y Development Co. v. City of Redlands (1982) 137 Cal.App.3d 926, 933, 187 Cal.Rptr. 370.) Proponents of Proposition 83 claimed amending this statute would "[a]llow prosecutors to charge criminals who possess child pornography with a felony ." (L.A. County Voter Information Guide, Gen. Elec. (Nov. 7, 2006) (hereafter "Guide") argument in favor of Prop. 83 by the Legislative Analyst, p. 46), some italics added.)
H.N. notes Proposition 83 only advised voters that prosecutors would be allowed to consider the offense as a felony. It does not state they would be required or mandated to do so. This is consistent with the offense remaining a wobbler. One court in dicta concluded that "[a]s a result of Proposition 83," this crime "can now be punished as a felony or misdemeanor." ( People v. Manfredi (2008) 169 Cal.App.4th 622, 634, 86 Cal.Rptr.3d 810.)
The People suggest this offense is a "straight felony" that precludes the juvenile court from entering a disposition of anything less than a felony. But a straight felony cannot be alternatively punished by a one-year county jail term and a fine. ( People v. Beebe (1989) 216 Cal.App.3d 927, 930, 265 Cal.Rptr. 242.) Had the Legislature and electorate intended this crime to be a straight felony, they would have included only a state prison term as the punishment. ( Ibid . ) Where the Legislature classifies the crime as a felony "without providing for alternative punishment," it is a straight felony. ( People v. Mauch (2008) 163 Cal.App.4th 669, 674, 77 Cal.Rptr.3d 751.)
But where lawmakers provide the alternative sentencing option in that statute, it provides the authority to sentence it as a misdemeanor. ( Ibid. ) In Proposition 83, voters were advised that "existing provisions" of section 311.11 that are "proposed to be deleted are printed in strike out type." (Guide, supra , text of proposed laws, p. 127.) But the amended portion of this offense required by the proposition did not strike out the alternative punishment of "up to one year" in a county jail. (Id. at p. 128.)
The People's position that violation of this statute must always be a felony assumes lawmakers and the electorate believed the offense involves such a uniform level of seriousness and culpability that all...
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