                                                                     FILED BY CLERK
                           IN THE COURT OF APPEALS                      FEB 24 2010
                               STATE OF ARIZONA
                                 DIVISION TWO                            COURT OF APPEALS
                                                                           DIVISION TWO



                                            )
                                            )    2 CA-JV 2009-0109
IN RE CASEY G.                              )    DEPARTMENT B
                                            )
                                            )    OPINION
                                            )
                                            )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                Cause No. 191354-01

                         Honorable Sarah R. Simmons, Judge

          AFFIRMED IN PART, REVERSED IN PART, AND REMANDED



Barbara LaWall, Pima County Attorney                                           Tucson
 By Dale Cardy                                                      Attorneys for State


Robert J. Hirsh, Pima County Public Defender                                   Tucson
 By Susan C. L. Kelly                                              Attorneys for Minor


B R A M M E R, Judge.


¶1           Pursuant to a plea agreement, the minor appellant, Casey G., was

adjudicated delinquent after admitting a charge of sexual conduct with a minor under

fifteen, a class two felony committed in violation of A.R.S. § 13-1405. The delinquency
petition alleged the offense was a dangerous crime against children.1 Between the time

of his adjudication and disposition hearings, Casey moved to strike the dangerous-crime-

against-children allegation. The juvenile court denied the motion and, at disposition,

ordered Casey placed on juvenile intensive probation supervision for a minimum of

eighteen months. The sole issue raised on appeal is whether the juvenile court erred in

refusing to strike the allegation that Casey’s offense was a dangerous crime against

children as that term is defined in A.R.S. § 13-705(P)(1)(e). The proper interpretation of

§ 13-705 is a pure question of law, which we review de novo. See State v. Sepahi, 206

Ariz. 321, ¶ 2, 78 P.3d 732, 732 (2003); In re Reymundo F., 217 Ariz. 588, ¶ 5, 177 P.3d

330, 332 (App. 2008).

¶2            In interpreting a statute, our goal is to ascertain and give effect to the

legislative intent behind the statute. Mejak v. Granville, 212 Ariz. 555, ¶ 8, 136 P.3d

874, 876 (2006). The best indicator of that intent is the language of the statute itself. Id.;

In re Jessi W., 214 Ariz. 334, ¶ 15, 152 P.3d 1217, 1220 (App. 2007). “When the

language of the statute is clear and unambiguous, this Court need go no further to

ascertain the legislative intent.” Mejak, 212 Ariz. 555, ¶ 8, 136 P.3d at 876. Because the

       1
         The delinquency petition, filed on July 7, 2009, did not allege § 13-705 among
the list of statutes Casey was charged with violating. Although it cited A.R.S.
§ 13-604.01, the predecessor to § 13-705, § 13-604.01 was repealed, 2008 Ariz. Sess.
Laws, ch. 301, § 18, effective “from and after December 31, 2008.” Id. § 120.
Simultaneously, its substantive provisions were transferred to and renumbered as
§ 13-705. 2008 Ariz. Sess. Laws, ch. 301, §§ 17(A), 119, 120. Casey has not raised this
issue, either below or on appeal, and we do not address it.


                                              2
language of § 13-705 is clear and unambiguous, we conclude the juvenile court erred as a

matter of law.

¶3           Section 13-705 prescribes enhanced prison sentences in the adult context

for persons convicted of dangerous crimes against children.         A “[d]angerous crime

against children” is defined in § 13-705(P)(1), as any of a list of offenses enumerated in

subsections (a) through (u) of that section, when those particular crimes are “committed

against a minor . . . under fifteen years of age”—as Casey’s victim was in this case.

However, by the statute’s own terms, the dangerous-crimes-against-children designation

exists only “[f]or the purposes of” § 13-705. § 13-705(P). It thus applies only to enhance

the sentences of “person[s] who [are] at least eighteen years of age or who ha[ve] been

tried as an adult and who [are] convicted of a dangerous crime against children.”

§ 13-705(B), (C)-(F), (J); see also § 13-705(A) (“person who is at least eighteen years of

age and who is convicted of a dangerous crime against children”).

¶4           There is no dispute that Casey is younger than eighteen and was not tried as

an adult, and the state acknowledges he therefore is not currently susceptible to the

operation of § 13-705. But it contends that classifying the present offense as a dangerous

crime against children would allow the offense to serve “as a predicate felony” in the

event Casey subsequently should commit “an eligible offense after his eighteenth

birthday.” See § 13-705(P)(2) (defining predicate felony).

¶5           The state is mistaken, however, because all applicable subsections of

§ 13-705 that refer to a “predicate felony” or felonies require the person whose sentence

                                            3
is being enhanced under § 13-705 “ha[ve] been previously convicted” of the predicate

crime or crimes. § 13-705(C)-(F), (I), (K); see also § 13-705(G) (“has previously been

convicted”). And a delinquency adjudication is not the same as a criminal conviction; the

two are qualitatively different. See David G. v. Pollard ex rel. Pima County, 207 Ariz.

308, ¶ 25, 86 P.3d 364, 369 (2004) (“[A] determination that [a] juvenile committed a

delinquent act is not considered to be a criminal conviction.”). As A.R.S. § 8-207(A)

provides:

                     Except as provided by [A.R.S.] § 13-904, subsection
             H, [A.R.S.] § 13-2921.01, [A.R.S.] § 17-340 or [A.R.S.]
             §§ 28-3304, 28-3306 and 28-3320, an order of the juvenile
             court in proceedings under this chapter shall not be deemed a
             conviction of crime, impose any civil disabilities ordinarily
             resulting from a conviction or operate to disqualify the
             juvenile in any civil service application or appointment.

Consequently, no court could ever find that, as a result of the present adjudication of

delinquency, Casey “has been previously convicted” of the underlying crime. See In re

Fernando C., 195 Ariz. 233, ¶ 5, 986 P.2d 901, 902 (App. 1999) (word “convicted” in

statute does not encompass minor’s delinquency adjudication). Rather, Casey’s offense

is a “[d]elinquent act,” defined in A.R.S. § 8-201(10) as “an act by a juvenile that if

committed by an adult would be a criminal offense.”2



      2
        Exceptions to this definition appear in A.R.S. § 13-501, which sets out the
circumstances under which juveniles shall or may be prosecuted as adults. Hence,
§ 8-201(10) also provides that a “[d]elinquent act does not include an offense under
§ 13-501, subsection A or B if the offense is filed in adult court.” None of the exceptions
identified in § 13-501 is applicable under the circumstances present here.
                                            4
¶6            Our legislature has repeatedly recognized the distinction between a

delinquency adjudication and a criminal conviction. See, e.g., § 13-904(A) (providing for

suspension of various civil rights following felony conviction, including, in § 13-

904(A)(5), “right to possess a gun or firearm”); § 13-904(H) (separately preventing

juveniles “adjudicated delinquent . . . for a felony” from “carry[ing] or possess[ing] a gun

or firearm”); § 13-2921.01(D) (defining “convicted” for purposes of § 13-2921.01 as

including either “convict[ion] of” or delinquency adjudication for domestic violence

offense); A.R.S. § 13-3101(7)(b) (defining prohibited possessor to include persons

“convicted . . . of a felony or . . . adjudicated delinquent for a felony”); A.R.S. § 13-

3821(A), (D) (requiring sex-offender registration by persons convicted of certain offenses

and, in separate subsection, permitting court to require registration by persons

adjudicated delinquent for those offenses); § 17-340(A), (B) (prescribing penalties for

wildlife violations “[u]pon conviction or after adjudication as a delinquent juvenile”);

§ 28-3304(C) (defining “conviction” to include specifically “a final adjudication or

judgment, including an order of a juvenile court finding that a juvenile violated any

provision of this title or committed a delinquent act that if committed by an adult would

constitute a criminal offense”); § 28-3320(E) (same as § 28-3304(C)).

¶7            Thus, had the legislature intended the definition of a “predicate felony” for

purposes of § 13-705 also to include delinquency adjudications for acts that otherwise

would constitute dangerous crimes against children if committed by an adult, we can

assume it would have expressly so provided. See State v. Zinsmeyer, 222 Ariz. 612, ¶ 31,

                                             5
218 P.3d 1069, 1081(App. 2009) (court presumes legislature expresses what it intends).

Accordingly, we reverse the juvenile court’s ruling denying Casey’s motion to strike and

remand the case with instructions to grant the motion and to excise from the record any

references designating Casey’s offense as a dangerous crime against children. In all other

respects, we affirm the juvenile court’s orders of adjudication and disposition.



                                              /s/ J. William Brammer, Jr.
                                              J. WILLIAM BRAMMER, JR., Judge


CONCURRING:



/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Presiding Judge




/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Judge




                                             6
