Filed 7/16/14 In re Joshua M. CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


In re JOSHUA M., a Person Coming Under                               B249372
the Juvenile Court Law.                                              (Los Angeles County
                                                                     Super. Ct. No. JJ19796)

THE PEOPLE,

         Plaintiff and Respondent,

         v.

JOSHUA M.,

         Defendant and Appellant.




                   APPEAL from an order of the Superior Court of Los Angeles County,
Irma J. Brown, Judge. Affirmed in part, reversed in part and remanded with directions.
                   Steven A. Torres, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D.
Matthews and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
                                             ____________________
       Joshua M. appeals from the juvenile court’s order committing him to the
California Department of Corrections and Rehabilitation, Division of Juvenile Facilities
(DJF) on his most recently sustained Welfare and Institutions Code section 602 petition.1
We reverse the disposition order and remand for a new disposition hearing in light of the
California Supreme Court’s recent decision in In re D.B. (2014) 58 Cal.4th 941.2
                     FACTUAL AND PROCEDURAL BACKGROUND
       In a previously sustained section 602 petition, Joshua was found to have
committed burglary (Pen. Code, § 459) on September 10, 2010, declared a ward of the
juvenile court and ordered home on probation. Burglary is not among the serious or
violent felony offenses enumerated in section 707, subdivision (b).
       In 2012, the People filed a section 602 petition charging Joshua, then 15 years old,
with committing one count of sodomy by use of force (Pen. Code, § 286, subd.
(c)(2)(C)), two counts of forcible lewd acts upon a child (Pen. Code, § 288, subd. (b)(1))
and one count of forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)) on or between
October 1 and 31, 2009 based on allegations he had physically coerced Christopher W.,
then nine years old, to engage in a series of sexual acts.3
       At the jurisdiction hearing, the juvenile court found the allegations true and
sustained the petition. Sodomy by force, forcible lewd acts upon a child and oral
copulation by force are included in the offenses listed in section 707, subdivision (b).
(See § 707, subd. (b)(5), (6) & (7), respectively.) After rejecting Joshua’s argument that
he was statutorily ineligible for DJF commitment, the juvenile court ordered him
committed to DJF for a period not to extend beyond his 22nd birthday.



1
       Statutory references are to the Welfare and Institutions Code, unless otherwise
indicated.
2
      In light of In re D.B., supra, 58 Cal.4th 941, we do not address Joshua’s
contention that the juvenile court abused its discretion by committing him to DJF.
3
       An additional charge of dissuading a witness from reporting a crime (Pen. Code,
§ 136.1, subd. (b)(1)) was dismissed on the People’s motion.

                                              2
                                       DISCUSSION
       Section 733 provides that a minor may not be committed to DJF “if the ward has
been or is adjudged a ward of the court pursuant to Section 602, and 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 or subdivision (c) of Section 290.008 of the
Penal Code.” (§ 733, subd. (c).)
       On appeal, Joshua contends the most recently committed offense rather than the
most recent petition filed determines whether a ward may be committed to the DJF and
the juvenile court abused its discretion by ordering him committed to the DJF.
       During the pendency of this appeal, the California Supreme decided In re D.B,
supra, 58 Cal.4th 941, in which a minor was charged in a wardship petition with a series
of crimes, including robbery, a section 707, subdivision (b) offense. The petition further
alleged on a later date the minor resisted arrest and falsely identified himself to a police
officer. Neither of these offenses is listed in section 707, subdivision (b). (In re D.B.,
supra, 58 Cal.4th at p. 945.) The juvenile court found the allegations true, sustained the
petition and committed the minor to DJF. (Ibid.)
       The California Supreme Court determined section 733, subdivision (c) prohibits a
minor from being committed to DJF where a section 602 petition alleges the minor has
committed a series of criminal offenses, including serious or violent offenses and the last
offense in the series is nonviolent. (In re D.B., supra, 58 Cal.4th at p. 944.) After noting
the “statute premises DJF eligibility on the nature of ‘the most recent offense alleged in
any petition and admitted or found true by the court,’” the Court explained that “[w]hen a
law is unambiguous, we must conclude the Legislature meant what it said even if the
outcome strikes us as unwise or disagreeable.” (Ibid.) Accordingly, the plain language
of the statute “mandates that a minor may not be committed to DJF unless the most
recently committed offense that is alleged in any wardship petition, then admitted or
found true, is listed in section 707 [subdivision] (b) or Penal Code section 290.008
[subdivision] (c).” (Ibid.)



                                              3
       The Court in In re D.B. acknowledged because section 733, subdivision (c)
“examines only the last offense committed, the statute will sometimes require that
currently violent offenders and sex offenders be placed in local settings with juveniles
whose offenses are far less serious,” and “these potential consequences are certainly
troubling.” (In re D.B., supra, 58 Cal.4th at p. 948.) Nonetheless, the Court determined
the consequences were not “so absurd that we must override the plain meaning of the
statutory language.” (Ibid.; italics in original.) The statute was enacted to limit DJF
commitments “by shifting responsibility to the county level ‘“for all but the most serious
youth offenders.”’” (Ibid.) Although the Legislature’s chosen approach may have
unintended consequences, any changes to the statutory language are solely for Legislature
to make. (Ibid.) Additionally, prosecutors can avoid such difficulties by using care in
charging and adjudicating juvenile offenses. (Id. at p. 948.)
       The instant case presents another unintended consequence of section 733,
subdivision (c) as written. Because Joshua’s “most recent offense” within the meaning of
the statute was burglary, which is not listed in section 707, subdivision (b), his
commitment to DJF based on his earlier, but more recently adjudicated, sexual offenses
was an unauthorized disposition.
                                      DISPOSITION
       The disposition order is reversed and the matter remanded for the limited purpose
of conducting a new disposition hearing. The jurisdiction finding is affirmed.




                                                                        WOODS, J.
We concur:




              PERLUSS, P. J.                                            ZELON, J.




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