Filed 5/16/14 In re Michael H. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re MICHAEL H., a Person Coming
Under the Juvenile Court Law.
                                                                 D063833
THE PEOPLE,

         Plaintiff and Respondent,                               (Super. Ct. No. J211-796)

         v.

MICHAEL H.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County,

Browder A. Willis III, Judge. Affirmed.

         Patrick M. Ford, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Karl T. Terp,

Deputy Attorneys General, for Plaintiff and Respondent.
       Michael H. was committed to the Department of Corrections and Rehabilitation,

Division of Juvenile Facilities (DJF) for four years following a probation violation based

on an original conviction of an assault with a deadly weapon as an aider and abettor.

Michael appeals contending that the juvenile court erred in finding that assault with a

deadly weapon qualified as an offense making him eligible for commitment to the DJF as

it is not on the exclusive list of qualifying offenses referenced in Welfare and Institutions

Code section 707, subdivision (b) (section 707(b), undesignated statutory references are

to this code). We disagree.

                                          FACTS

       On June 4, 2010, Michael and other juveniles physically attacked Bryce B.

During the assault, Michael and his companions struck Bryce B. in the head with a beer

bottle and knocked him down. While on the ground, they kicked and punched Bryce B.

and stabbed him in the head, back, and buttocks with a knife. The People alleged that

Michael committed attempted murder, assault by means of force likely to produce great

bodily injury, assault with a deadly weapon, and used force and violence resulting in

serious bodily injury. Michael admitted to committing assault with a deadly weapon.

The court struck the remaining counts. The juvenile court placed Michael on probation,

and he was committed to the San Diego County Probation Youthful Offender Unit

(YOU) program. After being released from the YOU, he violated the terms of probation.

The court placed Michael back on probation with the YOU. Again, Michael violated the

terms of probation and continued with the YOU.



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         In 2013, the court held a detention hearing regarding allegations that Michael

assaulted a YOU counselor. Michael refused to follow the counselor's instruction and

punched him in the face. The blow to the counselor's face caused him to fall backwards

and broke his nose. The court found that Michael violated the terms of probation. The

court transferred the matter for disposition to Judge Willis, the original judge who

handled Michael's 2010 assault with a deadly weapon case, to determine whether assault

with a deadly weapon was a qualifying offense under section 707(b).

         Judge Willis addressed two issues at the disposition hearing: (1) whether the court

was barred from determining if assault with a deadly weapon came within the meaning of

section 707(b), and (2) whether the court could consider the facts of the offense to make

this determination.

         The court determined that it could consider the specific facts of the case to which

Michael plead when deciding if it came within the meaning of section 707(b). It further

determined that the assault with a deadly weapon came within the meaning of section

707(b).

         The court found the YOU ineffective and committed Michael to the DJF for four

years.

                                        DISCUSSION

A. General Legal Principles

         A juvenile offender committed to the DJF must be discharged no later than the

expiration of a two-year period of control or his or her 21st birthday, whichever occurs

later, unless the offender has been adjudicated of an offense listed in section 707(b), in

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which case, jurisdiction extends over him or her until his or her 25th birthday. (Welf. &

Inst. Code, § 1769.)

       Section 707(b) lists 30 offensives that subject a minor to DJF confinement.

Assault with a deadly weapon is not a specifically enumerated section 707(b) offense.

However, assault by any means of force likely to produce great bodily injury is an

enumerated offense. (§ 707, subd. (b)(14).) Section 707(b) is intended "to designate the

offenses that trigger extended commitments." (In re Tino V. (2002) 101 Cal.App.4th 510,

513.) This subdivision contains descriptions of violent and serious felonies, including

murder, assault with intent to murder, assault with a firearm or destructive device, and

assault by any means of force likely to produce great bodily injury. Minors who have

committed section 707(b) offenses will be evaluated to determine if they are fit subjects

to be dealt with under the juvenile court law. (§ 707, subd. (c).) If they are, and

subsequently committed to custody, they are subject to extended jurisdiction. (In re

Pedro C. (1989) 215 Cal.App.3d 174, 182 (Pedro C.).)

       In order to determine whether an offense falls under section 707(b), "the trial court

must consider the evidence before it to determine, as a matter of fact, what the

circumstances of the offense were." (In re Gary B. (1998) 61 Cal.App.4th 844, 851.) In

order to make this factual determination, the court may consider evidence of the

probationer's study and other relevant evidence that is transactionally related to the

current offense. (Id. at pp. 850-851.) Thus, the trial court is permitted to consider facts

relevant to an allegation that was dismissed pursuant to a plea bargain if it is



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transactionally related to the offense to which the defendant pleaded guilty. (Id. at p.

849.)

        In Pedro C., Pedro C. admitted to assault with a deadly weapon. (Pedro C., supra,

215 Cal.App.3d at p. 182.) The precise issue before the Pedro C. court was whether a

section 707(b) offense, assault by means of force likely to produce great bodily injury,

embraces assault with a deadly weapon, an offense that is not enumerated under that

section. The Pedro C. court explained that a deadly weapon is one likely to produce

death or great bodily injury and held that assault by any means of force likely to produce

great bodily injury encompasses assault with a deadly weapon. (Pedro C., at p. 182.)

B. Analysis

        Michael appeals the trial court's finding that assault with a deadly weapon is a

qualifying offense within the meaning of section 707(b). He argues that assault with a

deadly weapon is not a specifically enumerated offense, and, therefore, he is ineligible to

be committed to the DJF. Michael further argues that we should apply the rule of lenity.

We reject these arguments.

        Michael relies on the doctrine of expressio unius est exclusio alterius ("the

expression of certain things in a statue necessarily involves exclusion of other things not

expressed. . . .") to illustrate that the legislature did not intend that assault with a deadly

weapon be included under section 707(b). (Dyna-Med, Inc. v. Fair Employment &

Housing Com. (1987) 43 Cal.3d 1379, 1391, fn. 13.) Stated another way, the omission of

certain offenses, while including others, is indicative of intent.



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       However, Michael acknowledges the holding in Pedro C., that assault with a

deadly weapon is subsumed within assault with force likely to produce great bodily

injury. (Pedro C., supra, 215 Cal.App.3d at p.183.) The Legislature is presumed to have

known of and acquiesced in the previous judicial construction when it amends a statute

without changing portions that have been construed by the courts. (Sharon S. v. Superior

Court, (2003) 31 Cal.4th 417, 433.) Section 707(b) has been amended several times

since Pedro C. was decided. The Legislature has not repudiated Pedro C. Accordingly,

we see no reason to depart from the Pedro C. court's statutory intent analysis.

       The trial court properly considered the facts relevant to Michael's offense since it

was transactionally related to the offense to which Michael pleaded guilty. Assault with

force likely to produce great bodily injury requires a fact-sensitive inquiry. Where there

is actual injury to the victim, the nature and extent of the injuries "will often be the

controlling factor" in determining that the force used was likely to produce great bodily

injury. (People v. Duke (1985) 174 Cal.App.3d 296, 303.) Michael and his companions

stabbed Bryce B. in the head, back, and buttocks with a knife. After the assault, Bryce B.

was taken to the hospital. The factual determination made by the trial court was

supported by substantial evidence that the assault came within the meaning of assault

with force likely to produce great bodily injury.

       Similar to Pedro C., Michael admitted to assault with a deadly weapon but never

admitted to assault by means likely to produce great bodily injury. Assault with a deadly

weapon is one likely to produce great bodily injury. We find no reason to depart from the

Pedro C. analysis that assault with a deadly weapon in subsumed within the meaning of

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assault with force likely to produce great bodily injury. (Pedro C., supra, 215

Cal.App.3d at p. 174.) Michael has not cited to any case, nor are we aware of one, where

a contrary view or interpretation has been expressed.

       Michael further argues that, under the rule of lenity, we should construe a statute

as favorable to a criminal defendant if its language and the circumstances of its

application reasonably permit. (People v. Garcia (1999) 21 Cal.4th. 1, 10-11.)

       The rule of lenity is a general interpretive policy or guideline where, if a statute

defining a crime or punishment is susceptible of two reasonable interpretations, courts

ordinarily adopt the interpretation that is more favorable to the defendant.

(People v. Arias (2008) 45 Cal.4th 169, 177.) The rule of lenity only applies if, after

considering the text and purpose, there remains egregious ambiguity or uncertainty in a

statute imposing a criminal penalty, such that the court must simply guess as to what was

intended. (People v. Manzo (2012) 53 Cal.4th 880, 889.) In other words, the rule of

lenity is a tie-breaking principle when two reasonable interpretations of the same

provision stand in relative balance. (Ibid.)

       Section 707(b) is not subject to egregious ambiguity or uncertainty. The fact that

a statute could be interpreted favorably to a defendant does not mean a court should strain

to interpret a penal statute in defendant's favor if it can fairly discern legislative intent.

(People v. Manzo, supra, 53 Cal.4th at p. 890.) As discussed above, we are able to

discern legislative intent. The purpose of the statute, general public policy concerns, and

logic all favor an interpretation that would recognize a violation of section 707(b). We

find no egregious ambiguity or uncertainty in section 707(b) such that the court must

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simply guess as to what was intended by that statute. Accordingly, the rule of lenity does

not compel a different result.

       We therefore arrive at the conclusion that Michael's assault with a deadly weapon

falls within the purview of section 707(b).

                                     CONCLUSION

       The judgment is affirmed.



                                                                     MCINTYRE, J.

WE CONCUR:

BENKE, Acting P. J.

AARON, J.




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