Filed 7/11/13

                            CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              SIXTH APPELLATE DISTRICT


THE PEOPLE,                                         H038109
                                                   (Santa Cruz County
        Plaintiff and Respondent,                   Super. Ct. No. M58118)

            v.

DONAVON HICKS BARCLAY III,

        Defendant and Appellant.



        Defendant Donavon Hicks Barclay III was convicted of violating Vehicle Code
section 23152, subdivision (a)1 (driving under the influence of alcohol) and section
23152, subdivision (b) (driving with a blood alcohol content of 0.08 percent or higher).
Due to defendant‟s prior juvenile adjudication for felony vehicular manslaughter, the trial
court elevated the convictions to felonies pursuant to section 23550.5, subdivision (a)(3).
On appeal, defendant contends that section 23550.5, subdivision (a)(3) requires an adult
conviction for felony vehicular manslaughter—not a juvenile adjudication for felony
vehicular manslaughter—in order to elevate a section 23152 conviction to a felony. As
set forth below, we conclude that the plain language of section 23550.5, subdivision
(a)(3) authorized the elevation of defendant‟s section 23152 convictions to felonies. We
therefore will affirm.




        1
            Subsequent unspecified statutory references are to the Vehicle Code.
                          FACTUAL AND PROCEDURAL HISTORY
       On November 18, 2010, defendant drove his car off State Route 35 and crashed
the car into a tree. Defendant sustained serious injuries during the crash, and he was
transported to the hospital. Defendant gave a blood sample at the hospital, and the
alcohol content of the blood was 0.15 percent.
       An information charged defendant with one count of driving under the influence
of alcohol (§ 23152, subd. (a)) and one count of driving with a blood alcohol content of
0.08 percent or higher (§ 23152, subd. (b)). The information alleged, pursuant to
section 23550.5, subdivision (a)(3), that defendant‟s prior juvenile adjudication for
vehicular manslaughter (Pen. Code, § 192, subd. (c)(1)) elevated the charged offenses to
felonies. The information further alleged that defendant had a blood alcohol content of
0.15 percent or higher (§ 23578).
       Defendant waived his right to a jury trial, and he elected a court trial on the issue
of whether the prior juvenile adjudication for vehicular manslaughter could elevate the
charged offenses to felonies. At the court trial, the court took judicial notice of several
documents in defendant‟s juvenile court file. One of the documents, a juvenile wardship
petition, alleged that on November 3, 2007 17-year-old defendant committed felony
vehicular manslaughter in violation of Penal Code section 192, subdivision (c)(1) and
misdemeanor driving under the influence of a drug in violation of section 23152,
subdivision (a). Another document, the minute order for the initial appearance on the
wardship petition, specified that defendant admitted a felony violation of Penal Code
section 192, subdivision (c)(1) and a misdemeanor violation of section 23152,
subdivision (a). A final document, the minute order for the juvenile disposition hearing,
stated the following: the juvenile court declared defendant a ward of the court, the
juvenile court placed defendant on probation with conditions including 180 days on an



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electronic monitoring program and 200 hours of community service, and the maximum
period of confinement for defendant‟s offenses was six years and two months.
       At the conclusion of the court trial, the court ruled that defendant‟s juvenile
adjudication for vehicular manslaughter elevated the charged crimes to felonies under
section 23550.5, subdivision (a)(3). The court accordingly found true the allegation
pursuant to section 23550.5, subdivision (a)(3).
       After the court trial, defendant pleaded no contest to driving under the influence of
alcohol and driving with a blood alcohol content of 0.08 percent or higher. Defendant
admitted that he had a blood alcohol content of 0.15 percent or higher.
       The court suspended imposition of sentence and placed defendant on probation for
a period of 60 months. As a condition of probation, the court ordered defendant to serve
365 days in county jail. The court ordered defendant to serve a portion of the jail term in
a residential sobriety program.
       After he was sentenced, defendant filed a timely notice of appeal. This appeal
followed.
                                        DISCUSSION
       Defendant argues the judgment must be reversed because “a juvenile adjudication
for vehicular manslaughter cannot properly be used to elevate a . . . driving under the
influence violation to a felony.” Defendant asserts that the language of section 23550.5,
subdivision (a)(3) requires an adult conviction for felony vehicular manslaughter, not a
juvenile adjudication for felony vehicular manslaughter, in order to elevate a
section 23152 conviction to a felony. The People argue the use of term “prior violation”
in section 23550.5, subdivision (a)(3), combined with the absence of the term “prior
conviction” in that subdivision, evidences a legislative intent to elevate a section 23152
conviction to a felony where the defendant has had a prior juvenile adjudication for
felony vehicular manslaughter.

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       At issue in this appeal is the meaning of the following phrase employed in section
23550.5, subdivision (a)(3): “prior violation of paragraph (1) of subdivision (c) of
Section 192 of the Penal Code that was punished as a felony.” As explained below, we
conclude that the plain language of section 23550.5, subdivision (a)(3) authorized the
elevation of defendant‟s section 23152 convictions to felonies, and we accordingly affirm
the judgment of conviction.
Standard of Review and the Rules of Statutory Interpretation
       Defendant‟s appeal presents an issue of statutory interpretation. “Issues of
statutory interpretation are questions of law subject to de novo review.” (People v.
Simmons (2012) 210 Cal.App.4th 778, 790.)
       We have written that when faced with a question of statutory meaning, “we first
examine the words of the statute in context, giving them if possible their plain, everyday,
commonsense meaning. If we find no ambiguity or uncertainty, we presume that the
Legislature meant what it said, rendering further inquiry into legislative intent
unnecessary. [Citation.] If, on the other hand, the statutory language is unclear or
ambiguous, i.e., it permits more than one reasonable interpretation, we may consider
various extrinsic aids to help us ascertain the Legislature‟s intent, including legislative
history, public policy, settled rules of statutory construction, and an examination of the
evils to be remedied and the legislative scheme encompassing the statute in question.
[Citations.] In such circumstances, we select the interpretation that comports most
closely with the apparent intent of the Legislature, with a view toward promoting, rather
than defeating, the general purpose of the statute and avoiding an interpretation that
would lead to absurd consequences. [Citation.]” (Schmidlin v. City of Palo Alto (2007)
157 Cal.App.4th 728, 749.)




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The Plain Language of Section 23550.5, Subdivision (a)(3) Authorized Elevation of
Defendant’s Section 23152 Convictions to Felonies
       Defendant was convicted of a felony violation of section 23152, subdivision (a)
and a felony violation of section 23152, subdivision (b). Section 23152, subdivision (a)
states: “It is unlawful for any person who is under the influence of any alcoholic
beverage or drug, or under the combined influence of any alcoholic beverage and drug, to
drive a vehicle.” Section 23152, subdivision (b) states: “It is unlawful for any person
who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a
vehicle.”
       Normally, a section 23152 conviction is a misdemeanor. (People v. Baez (2008)
167 Cal.App.4th 197, 199.) However, a section 23152 conviction may be elevated to a
felony where, within the 10 years preceding the section 23152 violation, the defendant
has committed an offense enumerated in section 23550.5, subdivision (a). (Id. at pp. 199-
200.) Section 23550.5, subdivision (a)(3) specifies that a section 23152 conviction may
be elevated to a felony if the defendant has a “prior violation of paragraph (1) of
subdivision (c) of Section 192 of the Penal Code that was punished as a felony.” (Italics
added.)
       In order to understand the meaning of section 23550.5, subdivision (a)(3), we must
look to Penal Code section 192, subdivision (c)(1). Penal Code section 192,
subdivision (c)(1) criminalizes homicide committed while “driving a vehicle in the
commission of an unlawful act, not amounting to felony, and with gross negligence . . . or
driving a vehicle in the commission of a lawful act which might produce death, in an
unlawful manner, and with gross negligence.” “A violation of paragraph (1) of
subdivision (c) of Section 192 [of the Penal Code] is punishable either by imprisonment
in the county jail for not more than one year or by imprisonment in the state prison for
two, four, or six years.” (Pen. Code, § 193, subd. (c)(1).) Thus, a violation of Penal

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Code section 192, subdivision (c)(1) “is a „wobbler,‟ which may be punished as either a
felony or a misdemeanor.” (People v. Traylor (2009) 46 Cal.4th 1205, 1210, fn. 2.)
       Also important to our understanding of section 23550.5, subdivision (a)(3) is
Welfare and Institutions Code section 702. That section states, 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.” (Welf. & Inst. Code, § 702.) Such a declaration
“determines the maximum period of physical confinement” to which the minor is subject.
(In re Kenneth H. (1983) 33 Cal.3d 616, 619, fn. 3.)
       Two other Welfare and Institutions Code sections are also pertinent to our
understanding of section 23550.5, subdivision (a)(3). Welfare and Institutions Code
section 602, subdivision (a) specifies that the juvenile court may adjudge a minor to be a
ward of the court if the minor “violates” any criminal law. Welfare and Institutions Code
section 203 states that such a juvenile adjudication “shall not be deemed a conviction of a
crime.” In light of Welfare and Institutions Code section 203‟s mandate that juvenile
adjudications are not convictions, appellate courts have consistently held that the
statutory term “conviction” does not encompass a juvenile adjudication. (See People v.
Burton (1989) 48 Cal.3d 843, 861 [the term “ „prior felony conviction,‟ ” as used in Penal
Code section 190.3, factor (c), does not refer to juvenile adjudications]; In re Anthony
R. (1984) 154 Cal.App.3d 772, 776 [the term “convicted,” as used in Penal Code section
666, does not include juvenile adjudications]; In re Ricky B. (1978) 82 Cal.App.3d 106,
114, fn. 2 [juvenile adjudications cannot be considered “convictions” for purposes of
Evidence Code section 788].)
       Viewed in context, the plain language of section 23550.5, subdivision (a)(3) is
unambiguous. The use of the word “violation” in section 23550.5, subdivision (a)(3), as
opposed to the word “conviction,” demonstrates a legislative intent for juvenile

                                             6
adjudications to fall within the ambit of section 23550.5, subdivision (a)(3). Welfare and
Institutions Code section 602 specifies that a minor‟s criminal activity is deemed a
violation of the law. Welfare and Institutions Code section 203 and the case law
interpreting that section make clear that a juvenile adjudication is not a conviction. “The
enacting body is deemed to be aware of existing laws and judicial constructions in effect
at the time legislation is enacted.” (People v. Weidert (1985) 39 Cal.3d 836, 844.)
Because Welfare and Institutions Code sections 602 and 203 predate the enactment of
section 23550.5, we must presume that the Legislature was aware of the distinction
between the terms “violation” and “conviction” when drafting section 23550.5. Thus, in
using the word “violation” in section 23550.5, subdivision (a)(3), the Legislature
authorized the use of a juvenile adjudication for felony vehicular manslaughter to elevate
a section 23152 conviction to a felony. (See generally People v. Lucky (1988) 45 Cal.3d
259, 294-295 [the phrase “criminal activity,” as used in Penal Code section 190.3, factor
(b), includes juvenile adjudications].)
       The inclusion of the phrase “punished as a felony” in section 23550.5, subdivision
(a)(3) does not alter our conclusion. In light of the classification of Penal Code
section 192, subdivision (c)(1) as a wobbler offense, the phrase “punished as felony”
clarifies that only a felony violation of Penal Code section 192, subdivision (c)(1) will
elevate a section 23152 conviction to a felony. (See People v. Camarillo (2000) 84
Cal.App.4th 1386, 1391-1393 [the phrase “punished as a felony” focuses on “the nature
of the prior offense as a felony,” not the “character of the punishment” for the prior
offense].) Because Welfare and Institutions Code section 702 specifically requires the
juvenile court to declare a minor‟s wobbler offense to be a misdemeanor or a felony, a
minor‟s violation of Penal Code section 192, subdivision (c)(1) may properly be deemed
a felony violation. Given the presumption that the Legislature was aware of Welfare and
Institutions Code section 702 when it enacted section 23550.5, we must conclude that the

                                             7
Legislature contemplated the elevation of a section 23152 conviction to a felony based on
a juvenile adjudication for felony vehicular manslaughter. (See People v. Weidert, supra,
39 Cal.3d at p. 844 [the Legislature is deemed to be aware of laws in effect at the time
legislation is enacted].)
       In sum, the plain language of section 23550.5, subdivision (a)(3) authorizes
elevation of a section 23152 conviction to a felony if, within the 10 years preceding the
section 23152 violation, the defendant has had a juvenile adjudication for felony violation
of Penal Code section 192, subdivision (c)(1). In the instant case, there was evidence of
such a juvenile adjudication. The juvenile court records established that defendant
admitted a felony violation of Penal Code section 192, subdivision (c)(1), the juvenile
court declared defendant a ward of the court based on his felony violation of Penal Code
section 192, subdivision (c)(1), and defendant‟s felony violation of Penal Code section
192, subdivision (c)(1) occurred three years before the section 23152 violations charged
in the present case. The plain language of section 23550.5, subdivision (a)(3) therefore
authorized the elevation of defendant‟s section 23152 convictions to felonies.
       Defendant contends that the Legislature generally intends that “juvenile
adjudications are not to be used as prior criminal offenses in adult court,” and that
section 23550.5, subdivision (a)(3) must therefore be interpreted to authorize elevation of
a section 23152 conviction to a felony only where there is a prior adult conviction for
vehicular manslaughter. Defendant‟s argument ignores the plain language of
section 23550.5. As noted, section 23550.5, subdivision (a)(3) permits elevation of a
section 23152 conviction to a felony where the defendant has a “prior violation” of Penal
Code section 192, subdivision (c)(1). In contrast, section 23550.5, subdivision (b)
permits elevation of a section 23152 conviction to a felony where the defendant has
“previously been convicted of a violation” of Penal Code section 191.5 or Penal Code
section 192.5. (Italics added.) “It is a well recognized principle of statutory construction

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that when the Legislature has carefully employed a term in one place and has excluded it
in another, it should not be implied where excluded.” (People v. Bland (2002) 28 Cal.4th
313, 337, internal quotation marks omitted.) Thus, because the Legislature included the
term “convicted” in section 23550.5, subdivision (b) and excluded the term “convicted”
in section 23550.5, subdivision (a)(3), we cannot conclude that section 23550.5,
subdivision (a)(3) requires a prior adult conviction for vehicular manslaughter.
       Defendant‟s argument that section 23550.5, subdivision (a)(3) requires an adult
conviction for vehicular manslaughter is also contradicted by the policy underlying
section 23550.5. Section 23550.5 reflects a “strong public policy against repeat
offenders.” (People v. Camarillo, supra, 84 Cal.App.4th at p. 1394.) The plain language
of section 23550.5, subdivision (a)(3)—which permits use of both adult and juvenile
conduct to elevate a section 23152 conviction to a felony—comports with the strong
policy against repeat offenders. “If the statutory language is clear and unambiguous, the
provision should be applied according to its terms without further judicial construction so
long as the literal meaning is in accord with the purpose of the statute.” (People v. Snook
(1997) 16 Cal.4th 1210, 1216-1217.) Here, the plain language of section 23550.5,
subdivision (a)(3) unambiguously permits use of a juvenile adjudication for felony
vehicular manslaughter to elevate a section 23152 conviction to a felony, and this plain
language is in accord with the purpose of section 23550.5. Accordingly, we must apply
section 23550.5, subdivision (a)(3) according to its plain terms, and we cannot accept
defendant‟s argument that section 23550.5, subdivision (a)(3) requires an adult
conviction for vehicular manslaughter in order to elevate a section 23152 conviction to a
felony.
       Defendant additionally argues that a juvenile adjudication cannot properly be
classified as a felony, and that a juvenile adjudication for felony vehicular manslaughter
therefore cannot constitute the felony vehicular manslaughter violation required by

                                             9
section 23550.5, subdivision (a)(3). In support of this argument, defendant cites In re
Michael S. (1983) 141 Cal.App.3d 814 (Michael S.).
       Michael S. held that the juvenile court properly classified a minor‟s offense as a
felony, as required by Welfare and Institutions Code section 702. (Michael S., supra, 141
Cal.App.3d at pp. 818-819.) In dicta, however, Michael S. criticized Welfare and
Institutions Code section 702's felony-classification requirement and encouraged the
Legislature to redraft Welfare and Institutions Code section 702: “[I]t must be stressed
that despite the unfortunate language utilized in [Welfare and Institutions Code] section
702, . . . a court can never actually convert a juvenile proceeding into a criminal one, nor
transform the conduct that led to a minor‟s wardship into either a „felony‟ or a
„misdemeanor.‟ . . . [¶] . . . [¶] We, therefore, respectfully suggest to the Legislature that
. . . it give serious thought to eliminating the tautological litany presently mandated by
Welfare and Institutions Code section 702.” (Id. at pp. 817-818.)
       Defendant‟s reliance on Michael S. is unavailing. Despite its criticism of Welfare
and Institutions Code section 702, Michael S. confirmed that Welfare and Institutions
Code section 702 requires the juvenile court to classify appropriate offenses as felonies.
Moreover, although Michael S. strongly encouraged the Legislature to redraft Welfare
and Institutions Code section 702 and omit the felony-classification requirement, the
Legislature never redrafted Welfare and Institutions Code section 702 in the fashion
urged by Michael S. Thus, contrary to defendant‟s assertion, Michael S. does not compel
us to conclude that a juvenile adjudication for felony vehicular manslaughter is not a
felony vehicular manslaughter violation within the meaning of section 23550.5,
subdivision (a)(3).
       In summary, the plain language of section 23550.5, subdivision (a)(3) authorizes
elevation of a section 23152 conviction to a felony if, within the 10 years preceding the
section 23152 violation, the defendant has had a juvenile adjudication for felony violation

                                              10
of Penal Code section 192, subdivision (c)(1). Because the evidence established that
defendant had such a juvenile adjudication, we conclude that the trial court properly
elevated defendant‟s section 23152 convictions to felonies.
                                      DISPOSITION
      The judgment is affirmed.



                                         ______________________________________
                                                    RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           ELIA, J.




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Trial Court:                                  Santa Cruz County
                                              Superior Court No.: M58118


Trial Judge:                                  The Honorable Ariadne J. Symons



Attorney for Defendant and Appellant          Dena Meierhenry
Donavon Hicks Barclay III:                    under appointment by the Court
                                              of Appeal for Appellant



Attorneys for Plaintiff and Respondent        Kamala D. Harris
The People:                                   Attorney General

                                              Dane R. Gillette,
                                              Chief Assistant Attorney General

                                              Gerald A. Engler,
                                              Senior Assistant Attorney General

                                              Catherine A. Rivlin,
                                              Supervising Deputy Attorney General

                                              Bruce M. Slavin,
                                              Deputy Attorney General




People v. Barclay
H038109




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