Lead Opinion
Opinion
This case presents the question of statutory interpretation we left “for another day” in People v. Davis (1997)
Factual and Procedural Background
Defendant was charged with and convicted in a jury trial of one count each of residential burglary (§§ 459, 460) and possession of burglar’s tools (§ 466).
The Court of Appeal affirmed, rejecting, as had the trial court, defendant’s contention his prior juvenile adjudication did not qualify as a strike under section 667, subdivision (d)(3)(D), because residential burglary is not an offense listed in Welfare and Institutions Code section 707(b). The Court of Appeal, following People v. Griggs (1997)
Section 667, subdivision (d)(3) provides as follows:
“A prior juvenile adjudication shall constitute a prior felony conviction for purposes of sentence enhancement if:
“(A) The juvenile was 16 years of age or older at the time he or she committed the prior offense.
“(B) The prior offense is listed in subdivision (b) of Section 707 of the Welfare and Institutions Code or described in paragraph (1) [subdivision (d)(1) of section 667] or (2) [subdivision (d)(2) of section 667] as a felony.
“(C) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law.
“(D) The juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code.”
For convenience, we will refer below to the four paragraphs of section 667, subdivision (d)(3) simply as paragraphs (A), (B), (C), and (D).
Paragraph (B) disjunctively cross-references three statutory lists of offenses: the list in Welfare and Institutions Code section 707(b), which establishes a rebuttable presumption of unfitness for treatment under the juvenile court law for juveniles charged with such offenses (see Welf. & Inst. Code, § 707, subd. (c)); the list of “serious” offenses in section 1192.7, subdivision (c); and the list of “violent” offenses in section 667.5, subdivision (c). The latter two lists delineate, through cross-referencing in subdivision (d)(1) and (2) of section 667, the set of offenses that qualify as strikes when they are the subject of a prior adult conviction.
Paragraph (D), by contrast, refers only to a single statutory list: that contained in Welfare and Institutions Code section 707(b).
Because the two sets of offenses referenced in paragraph (B) (Welfare and Institutions Code section 707(b) offenses, and “serious” or “violent” offenses) are not identical, section 667, subdivision (d)(3) would contain an internal conflict if the lists in paragraphs (B) and (D) were both understood as defining the set of juvenile offenses qualifying as strikes. Under paragraph (B) a given juvenile offense would qualify if it were listed in section 707(b) or if it were serious or violent; under paragraph (D), however, an offense would qualify only if it were listed in section 707(b). Because burglary of an inhabited dwelling is listed as “serious” (§ 1192.7, subd. (c)(18)), but is not listed in section 707(b), defendant’s prior juvenile adjudication for residential burglary would qualify under paragraph (B), but not under paragraph (D).
Rather than rewrite the statute in any way, therefore, we adopt an interpretation that harmonizes paragraphs (B) and (D), without doing violence to the language or spirit of section 667, subdivision (d)(3). In brief, we interpret paragraph (B) as setting out the list of prior juvenile offenses that will qualify as strikes and paragraph (D) as requiring, in addition, that in the prior juvenile proceeding giving rise to the qualifying adjudication the juvenile have been adjudged a ward of the court because of a Welfare and Institutions Code section 707(b) offense, whether or not that offense is the same as the offense currently alleged as a strike.
Our interpretation depends upon a close reading of the statutory language exactly as written. As indicated in its introductory clause, section 667, subdivision (d)(3) delineates the circumstances under which a “prior juvenile adjudication” qualifies as “a prior felony conviction” for Three Strikes purposes. Each paragraph sets forth a necessary circumstance.
Paragraph (A) requires that the juvenile was 16 years old or older “at the time he or she committed the prior offense.” (§ 667, subd. (d)(3)(A).) Paragraph (A)’s reference to “the prior offense,” in context, can only mean the offense that was the subject of a “prior juvenile adjudication” currently alleged as a “prior felony conviction,” i.e., the prior offense currently alleged as a strike.
Paragraph (B), like paragraph (A), sets out a circumstance relating to “[t]he prior offense,” requiring such offense to be listed in Welfare and Institutions Code section 707(b) or to be a “serious” or “violent” felony. (§ 667, subd. (d)(3)(B).) Again, “[t]he prior offense” must, in context, be understood to mean the prior offense currently alleged as a strike.
Paragraph (C), unlike paragraphs (A) and (B), does not set forth a circumstance relating to “the prior offense.” Instead, it requires that the juvenile “was found” to be fit for juvenile court proceedings. (§ 667, subd. (d)(3)(C).) In context, paragraph (C) requires that the fitness finding, although not necessarily limited to any particular prior offense, must have occurred in the proceeding that led to the prior juvenile adjudication currently alleged as a strike. In this context, had the Legislature intended that the fitness finding could have occurred at any time, and not necessarily in the proceeding that led to the prior juvenile adjudication currently alleged as a strike, it would have used language so indicating.
Paragraph (D), like paragraph (C) and unlike paragraphs (A) and (B), does not set forth a circumstance relating to “the
Our interpretation of paragraph (D) does violence neither to the language nor to the purpose and spirit of section 667, subdivision (d)(3). Linguistically, our interpretation flows from, and is consistent with, the Legislature’s use of significantly different language in paragraphs (C) and (D) than in paragraphs (A) and (B). While paragraphs (A) and (B) expressly state circumstances relating to “the prior offense,” i.e., the prior offense currently alleged as a strike, paragraphs (C) and (D) state circumstances unlimited, by their terms, to any particular prior offense: that the juvenile “was,” respectively, found fit for juvenile court and adjudged a ward because of at least one Welfare and Institutions Code section 707(b) offense.
Our interpretation is, furthermore, consistent with the general purpose of the Three Strikes statute: “to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.” (§ 667, subd. (b).) Under our interpretation, only paragraph (B) limits the set of offenses that may qualify as strikes when the subject of a juvenile adjudication; consistent with the law’s general purpose, all “serious” and “violent” offenses may so qualify. Paragraphs (A), (C), and (D), under our interpretation, do not restrict possible qualifying juvenile offenses to a set narrower than the set of serious or violent adult offenses that may qualify as strikes, but merely set forth additional conditions to the use of a qualifying juvenile offense as a strike.
Nor is our interpretation inconsistent with the legislative history relating more specifically to section 667, subdivision (d)(3) and the parallel provision of the Three Strikes initiative, section 1170.12, subdivision (b)(3). A legislative committee analysis of the Three Strikes bill after its amendment to conform to the then-circulating initiative (see People v. Superior Court Romero) (1996)
By their terms, then, paragraph (B) sets out the list of qualifying priors, and paragraph (D) provides that those priors may
If, contrary to the interpretation adopted above, paragraphs (B) and (D) of section 667, subdivision (d)(3) are viewed as both setting forth the set of offenses qualifying as juvenile strikes, the paragraphs are in conflict, for some offenses would qualify under one paragraph but not under the other. As we will now see, all resolutions of this postulated conflict proposed by the parties, embraced in lower court decisions or discovered in our research, would require this court to disregard or rewrite some significant part of the statute. To resolve the conflict, we could:
(1) Disregard paragraph (B), on the theory that its inclusion was inadvertent drafter’s error. All juvenile adjudications for Welfare and Institutions Code section 707(b) offenses would, under paragraph (D), qualify as prior felony convictions, assuming, of course, that the requirements of paragraphs (A) and (C) were also met. This was, in essence, the resolution urged by the dissenting justice below.
(2) Disregard paragraph (D), on the theory that its inclusion was inadvertent drafter’s error. All juvenile adjudications for Welfare and Institutions Code section 707(b) offenses, “serious” felonies and “violent” felonies would, under paragraph (B), qualify as prior felony convictions, assuming, again, that the requirements of paragraphs (A) and (C) were also met.
(3) Add references to serious and violent felonies to paragraph (D), on the theory the omission of such language was inadvertent drafter’s error. Paragraph (D)’s list of offenses would then duplicate paragraph (B)’s, rendering one of them superfluous. All juvenile adjudications for Welfare and Institutions Code section 707(b) offenses, “serious” offenses and “violent” offenses would, under both paragraphs, qualify as prior felony convictions. This is the resolution urged by the People here and adopted in People v. Griggs, supra,59 Cal.App.4th at page 561 , and by the Court of Appeal majority in this case, which followed Griggs, and is endorsed in theory by Justice Baxter.
(4) Change the first “or” in paragraph (B) to “and,” on the theory that the use of the disjunctive was inadvertent drafter’s error. Only those offenses listed both in Welfare and Institutions Code section 707(b) and as “serious” or “violent” would qualify. The reference to section 707(b) offenses in paragraph (D) would be rendered superfluous. This is the resolution urged by defendant and by Justice Brown.
(5) A fifth possible construction, unlike the first four, does not proceed from the premise that paragraphs (B) and (D) both set forth the set of offenses qualifying as juvenile strikes, and thus avoids the purported conflict. Under this construction, paragraph (B) would be rewritten to refer to the allegations contained in the prior juvenile petition rather than to the juvenile court’s jurisdictional findings, on the theory that omission of such a reference to the allegations was inadvertent drafter’s error.
This theory rests on legislative history: As introduced, the Three Strikes bill provided that a prior juvenile adjudication would qualify as a strike if “the juvenile was 16 years of age or older at the time of the commission of the offense, the offense alleged to have been committed was an offense listed in [Welfare and Institutions Code section 707(b)], the juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law, and the juvenile was adjudged a ward of the juvenile court . . . because the person committed an offense listed in [Welfare and Institutions Code section 707(b)].” (Assem. Bill No. 971 (1993-1994 Reg.
As is evident, all of the above resolutions share a critical, disqualifying feature as interpretations of the Three Strikes law: all would require the court to disregard or rewrite some portion of the statute, violating the fundamental principle that a court should interpret a statute or initiative so as to harmonize and give effect to all its provisions if such an interpretation is consistent with the language and purpose of the act. (Wells v. Marina City Properties, Inc., supra,
Defendant, arguing for resolution (4) above, relies primarily on the “rule of lenity” for interpretation of ambiguous penal statutes. Under that rule (or, more properly, interpretive policy or guideline), we generally “construe a penal statute as favorably to the defendant as its language and the circumstances of its application may reasonably permit . . . .” (Keeler v. Superior Court (1970)
The rule of lenity provides guidance when the language of a penal statute is “susceptible” of two or more interpretations. (People v. Overstreet (1986)
The Attorney General, emphasizing the express legislative intent to increase punishment for felons who “have been previously convicted of serious and/or violent felony offenses” (§ 667, subd. (b)), urges us to interpret paragraph (B) to include as strikes juvenile adjudications for all such serious or violent offenses, regardless of whether the offense is also listed in Welfare and Institutions Code section 707(b). We agree the language of paragraph (B), as well as the stated legislative intent, calls for such an interpretation of that paragraph. Neither the language of paragraph (B), however, nor the intent expressed in section 667, subdivision (b), requires us to disregard or rewrite the language of paragraph (D), which requires, separately and without conflict, that the defendant was, in the prior juvenile proceeding, adjudged a ward of the juvenile court because of a section 707(b) offense.
The apparent premise of the Attorney General’s argument is that, in order to implement the intent expressed in section 667, subdivision (b) to ensure greater punishment and longer prison terms for recidivists who have been previously convicted of a serious or violent felony, all prior adjudications for serious or violent felonies must be counted as strikes. That was patently not the Legislature’s intent, however, as it included three additional requirements (paragraphs (A), (C) and (D)) limiting the juvenile adjudications that so qualify. (Cf. People v.
In an argument similar to the Attorney General’s, Justice Baxter, who nonetheless joins in our interpretation of paragraph (D), complains it will “partially gut” paragraph (B)’s list of qualifying offenses. (Conc. opn. of Baxter, J., post, at p. 17.) We disagree. Paragraphs (A), (B), (C), and (D) all state independent necessary requirements for use of a prior juvenile adjudication. That a given prior adjudication may meet one of these independent requirements but not another, and therefore be unusable as a strike, does not “gut” any part of the former requirement. For example, there are presumably a number of cases in which juveniles under the age of 16 have suffered adjudications for offenses listed in paragraph (B). That these adjudications do not meet the age requirement of paragraph (A), and therefore could not be used as prior felony convictions, does not render any part of paragraph (B) nugatory. The same is true for adjudications that satisfy paragraph (B) but not paragraph (D).
Justice Baxter also argues that paragraph (D)’s language can be explained only by drafting error. (Conc. opn. of Baxter, J., post, at pp. 18-19.) The presence or absence in the prior proceeding of an adjudication for an offense listed in Welfare and Institutions Code section 707(b) is, in his view, a “mere fortuity” that cannot rationally affect the usability of an otherwise qualifying prior adjudication. (Conc. opn. of Baxter, J., post, at p. 21.) Again, we disagree. Since the Legislature, the initiative drafters and the voters have enacted a scheme that includes an explicit requirement, for juvenile adjudications, that the juvenile was at the same time adjudged a ward because of a Welfare and Institutions Code section 707(b) offense, we must presume the Legislature, the drafters and the voters did not regard that circumstance as a “fortuity.” Had they thought the requirement of a Welfare and Institutions Code section 707(b) offense unimportant or anomalous to the purposes of the Three Strikes law, they would presumably have omitted any reference at all to that section. As written, the requirement of paragraph (D) may be seen as serving the purpose of ensuring that the crimes adjudicated in the prior proceeding included at least one offense “so serious as to raise a presumption of unfitness for treatment in the juvenile court system.” (Conc. & dis. opn. of Brown, J., post, at p. 24.)
To summarize, we interpret section 667, subdivision (d)(3) according to its terms, without adopting any of the rewritings proposed by the parties and lower courts. Under paragraph (B), a prior juvenile adjudication qualifies as a prior felony conviction for Three Strikes purposes only if the prior offense is listed in Welfare and Institutions Code section 707(b) or is classified as “serious” or “violent.” Paragraph (D) does not modify or conflict with paragraph (B), but states a separate, additional requirement: the prior adjudication qualifies as a prior felony conviction only if the defendant, in the prior juvenile proceeding, was adjudged a ward because of at least one offense listed in section 707(b). People v. Griggs, supra,
Our conclusion does not rest on the premise that all, or any particular, legislators or voters who enacted the Three Strikes law in either its legislative or initiative forms subjectively contemplated this interpretation of paragraph (D). The lack of parallelism between the cross-referenced lists of offenses in paragraphs (B) and (D) may well be the result of an oversight by the drafters of the Three Strikes initiative and by the legislators who subsequently enacted the text of the initiative as a statute, rather than a product of careful legislative craftsmanship.
In this respect, the Attorney General’s proposal to rewrite paragraph (D) by adding cross-references to the statutory lists of serious and violent felonies ignores necessary limitations on our proper role in statutory interpretation. Consistent with the separation of powers doctrine (Cal. Const., art. III, § 3), we have previously limited ourselves to relatively minor rewriting of statutes and, even then, only resorted to that drastic tool of construction when it has been obvious that a word or number had been erroneously used or omitted. (See, e.g., People v. Skinner, supra,
In the proceeding leading to the prior juvenile adjudication alleged and imposed against defendant as a prior felony conviction, the only felony offense for which defendant was adjudged a ward of the juvenile court was burglary of an inhabited dwelling, which is not an offense listed in Welfare and Institutions Code section 707(b). Although that offense is classified as serious and would, therefore, qualify as a strike under paragraph (B), the separate requirement of paragraph (D), that the juvenile was adjudged a ward of the juvenile court because of a section 707(b) offense, was not satisfied. The trial court therefore erred in sentencing defendant under section 667, subdivision (e)(1).
Disposition
The judgment of the Court of Appeal is reversed. The matter is remanded to the Court of Appeal with directions to remand to the trial court for new proceedings on sentence.
George, C. J., Mosk, J., Kennard, J., and Chin, J., concurred.
Notes
A11 further statutory references are to the Penal Code unless otherwise specified.
The facts of the offenses are not material to the issue on review.
Subdivision (b)(3) of section 1170.12 is virtually identical. Our discussion applies tó it as well.
Offenses classified as “serious” (§ 1192.7, subd. (c)) or “violent” (§ 667.5, subd. (c)) but not listed in Welfare and Institutions Code section 707(b) include voluntary manslaughter (§§ 1192.7, subd. (c)(1), 667.5, subd. (c)(1)); rape committed by means other than force, violence or threat of great bodily harm (§ 1192.7, subd. (c)(3)); simple kidnapping committed other than in the course of a carjacking and without infliction of bodily harm (§ 1192.7, subd. (c)(20)); a felony in which the defendant was alleged and found to have inflicted great bodily injury (§ 667.5, subd. (c)(8)); and residential burglary (§ 1192.7, subd. (c)(18)).
Offenses listed in Welfare and Institutions Code section 707(b) but not classified as “serious” or “violent” include discharge of a firearm into an inhabited building (§ 707(b)(15)), dissuading a witness or suborning perjury (§ 707(b)(19)), and manufacturing controlled substances (§ 707(b)(20)).
This formulation appears to have been drawn from section 12021, subdivision (e), the only statute we have been able to locate using the same language. At the time Assembly Bill No. 971 was introduced, section 12021, subdivision (e) provided in relevant part: “Any person who (1) is alleged to have committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code, (2) is found to be a fit and proper subject to be dealt with under the juvenile court law, and (3) is subsequently adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code shall not own, or have in his or her possession or under his or her custody or control, any firearm until the age of 30 years.” (§ 12021, as amended by Stats. 1991, ch. 955, § 3, p. 4453; see 51C West’s Ann. Pen. Code (1992 ed.) § 12021, p. 206, italics added.)
The Three Strikes bill, when originally introduced on March 1, 1993, provided that a prior juvenile adjudication would qualify as a strike if “the juvenile was 16 years of age or older at the time of the commission of the offense, the offense alleged to have been committed was an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code, the juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law, and the juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code.” (Assem. Bill No. 971 (1993-1994 Reg. Sess.).) The bill’s original cross-references—both of them to Welfare and Institutions Code section 707(b) alone—were parallel. While the bill was pending in the Legislature, however, the petition to place the initiative version of the law—which contained the nonparallel cross-references with which we are here concerned'—began circulating. (People v. Superior Court (Romero), supra,
Justice Brown reads the above discussion as an acknowledgement that “in all probability” our interpretation was not subjectively contemplated by the Legislature and electorate; on that basis she argues our interpretation violates the principle that we should interpret statutes so as to effectuate legislative intent. (Cone. & dis. opn. of Brown, J., post, at p. 23.) With respect, she misreads this opinion. We do not say anything regarding the “probability” any or all legislators or voters subjectively contemplated a given meaning; we simply do not know. Nor, of course, do we dispute that determining legislative intent is the goal of statutory interpretation; we simply apply the principle that, in general, a statute’s words are the most reliable indicator of legislative intent. (See, e.g., People v. Gardeley (1996)
We speak here only of rewriting to correct drafting or clerical errors. A different set of considerations and limitations governs the reformation of statutes to preserve their constitutionality. (See Kopp v. Fair Pol. Practices Com. (1995)
Concurrence Opinion
I concur in the majority opinion.
I write merely to concede that no governmental system is without possibility of error or omission.
In People v. Skinner (1985)
In the instant matter, we have an enigmatic result, attributable at least in part to the very legislative process I extolled so enthusiastically in Skinner.
I now reach the inevitable conclusion that no process, however well structured, is certain to be free of potential error or uncertainty. Skinner was one example. The instant case is but another.
Concurrence Opinion
I
I agree with the conclusion of the Court of Appeal in People v. Griggs (1997)
Accepting that conclusion, I am placed in an uncomfortable position in this case. To follow Griggs (as did the Court of Appeal below) would require rewriting section 667, subdivision (d)(3)(D) by adding a parallel reference to the offenses “described in paragraph (1) or (2) as a felony” in order to cross-reference the lists of serious or violent felonies referenced in section 667, subdivision (d)(3)(B). As the majority observe, “[cjonsistent with the separation of powers doctrine (Cal. Const., art. Ill, § 3), we have previously limited ourselves to relatively minor rewriting of statutes and, even then, only resorted to that drastic tool of construction when it has been obvious that a word or number had been erroneously used or omitted. [Citations.]” (Maj. opn., ante, at pp. 14-15.)
On the other hand, giving effect to the literal language of section 667, subdivision (d)(3)(D), as I shall explain, leads to anomalous results at odds with the purpose and intent behind the Three Strikes law.
Faced with this dilemma, consideration of the separation of powers doctrine leads me to join in the majority’s conclusion that “[i]n these circumstances, we must limit ourselves to interpreting the law as written, and leave for the People and the Legislature the task of revising it as they deem wise.” (Maj. opn., ante, at p. 15.) If the Legislature is unsatisfied with the interpretation the statutory rules of construction compel this court to place on section 667, subdivision (d)(3)(D) as presently worded, it can amend that provision with a parallel reference to the offenses “described in paragraph (1) or (2) as a felony” to more accurately reflect its intent. (§ 667, subd. (j).)
II
In prescribing a “wardship adjudication” requirement in section 667, subdivision (d)(3)(D) as the fourth prong for determining whether a prior juvenile adjudication qualifies as a “strike” for Three Strikes sentencing purposes, it is unlikely the Legislature intended to partially gut the source list of qualifying prior juvenile adjudications found in section 667, subdivision (d)(3)(B).
The formula set forth in section 667, subdivision (d)(3) for determining which prior juvenile adjudications qualify as strikes under the Three Strikes law was obviously not intended to be convoluted or overly complicated. There are four prongs which together determine whether a prior juvenile adjudication will qualify for Three Strikes use.
Section 667, subdivision (d)(3)(A) requires that the prior juvenile adjudication was suffered when defendant was 16 or 17 years of age. No matter what crimes a defendant committed prior to his 16th birthday, prior juvenile adjudications of such offenses cannot be used for Three Strikes purposes.
Section 667, subdivision (d)(3)(B) (paragraph (B)) is the clause listing the qualifying offenses. It includes the crimes or circumstances listed in Welfare and Institutions Code section 707, subdivision (b) on June 30, 1993
Section 667, subdivision (d)(3)(C) is the clause requiring that “[t]he juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law.” In People v. Davis (1997)
Finally, the clause with which we are here concerned—section 667, subdivision (d)(3)(D) (paragraph (D))—requires that the juvenile “was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code.”
As the Griggs court concluded, “Regarding section 667, subdivision (d) (3)(D), the failure to include those offenses ‘described in paragraph (1) or (2) as a felony’ (§ 667, subd. (d)(3)(B)) must be viewed as a drafting oversight. There is no other rational explanation for the omission. It would make no sense to require a prior offense to be listed in statute A—even if it was not listed in statute B—but then to bar use of the resulting adjudication because the adjudicated offense was not listed in statute B. We will not presume the Legislature intended such a bizarre result. Moreover, it makes no sense—and would frustrate the express intent of the three strikes law (see § 667, subd. (b))—to allow the use of juvenile adjudications as ‘strikes’ but to permit only adults to incur a ‘strike’ as the result of an offense listed in section 667.5, subdivision (c), or section 1192.7, subdivision (c).” (Griggs, supra,
If the single sentence comprising paragraph (D) ended with the phrase “or described in paragraph (1) or (2) as a felony,” the symmetry between paragraphs (B) and (D) of section 667, subdivision (d)(3) would be maintained, and the four-pronged test for qualifying prior juvenile adjudications as Three Strikes priors would be unambiguous, simple to apply, and most importantly, fully consistent with the underlying intent and purpose of the Three Strikes law. Like the Griggs court and the Court of Appeal below, I conclude the failure to include in paragraph (D) a parallel reference to those offenses “described in paragraph (1) or (2) as a felony” (as is found in paragraph (B)) was in all probability a drafting error or oversight.
It would come as no surprise to me were the Legislature to amend paragraph (D) of section 667, subdivision (d)(3) in the wake of our opinion in this case. Interpreting paragraph (D) strictly and literally renders a key portion of paragraph (B) nugatory. Serious or violent felonies as defined in sections 667.5, subdivision (c) and 1192.7, subdivision (c)—including the offense of residential burglary in question here—were plainly intended to be included among the offenses that could qualify as prior juvenile adjudications under the Three Strikes law. Under a literal interpretation of paragraph (D) as currently worded, however, a defendant can have one, five, ten or any number of prior juvenile
The offenses falling into this category, in addition to residential burglary (§ 1192.7, subd. (c)(18)), include unarmed robbery (§ 1192.7, subd. (c)(19)), voluntary manslaughter (§§ 1192.7, subd. (c)(1), 667.5, subd. (c)(1)), rape committed by means other than force, violence or threat of great bodily harm (§ 1192.7, subd. (c)(3)), simple kidnapping committed other than in the course of a carjacking and without infliction of bodily harm (§ 1192.7, subd. (c)(20)), and any felony in which the defendant was alleged and found to have inflicted great bodily injury (§ 667.5, subd. (c)(8)).
Why would the Legislature have excluded from the scope of the Three Strikes law prior juvenile adjudications for residential burglary, and the other offenses noted above, simply because the defendant had not also been declared a ward of the court in connection with a prior juvenile adjudication of a Welfare and Institutions Code section 707, subdivision (b)-listed offense in that earlier proceeding? Such a construction of paragraph (D) effectively eliminates a whole category of felonies referenced in paragraph (B) that were obviously intended to be included as potentially qualifying Three Strikes prior juvenile adjudications, and in so doing contravenes the spirit, if not the letter, of the habitual offender enhancement provisions of the Three Strikes law.
The linchpin of the fourth prong embodied in paragraph (D) is that the defendant had to have been adjudged a ward of the juvenile court in connection with the prior juvenile adjudication under consideration for Three Strikes use in order for it to qualify as a Three Strikes prior. (See § 667, subd. (d)(3) [“A prior juvenile adjudication shall constitute a prior felony conviction for purposes of sentence enhancement if . . . .”].) It is most reasonable to presume the Legislature believed prior juvenile adjudications of any felony referenced in the source list of qualifying offenses in paragraph (B) for which the defendant had been adjudged a ward of the juvenile court were inherently more serious, and for that reason could qualify as strikes under the Three Strikes law, in contrast to prior juvenile adjudications of any such offense for which the juvenile had not been declared a ward of the court. In this regard, it is important to note that a juvenile who comes within the jurisdiction of the juvenile court within the meaning of Welfare and Institutions Code section 602 for having committed any offense referenced in paragraph (B) does not necessarily have to be declared a ward of the juvenile court; lesser dispositions such as probation are an option. (Welf. & Inst. Code, § 725.) The Legislature appears to have concluded, reasonably so, that a declaration of wardship in connection with the prior juvenile adjudication under question should serve as one of the factors distinguishing prior juvenile adjudications that qualify for Three Strikes treatment from those that do not.
Under a literal interpretation of paragraph (D) .as presently worded, a defendant who has a single or multiple prior juvenile adjudications for residential burglary, unarmed robbery, voluntary manslaughter, rape committed by means other than force, violence, or threat of great bodily harm, simple kidnapping without infliction of bodily harm, or any crime for which he was found to have inflicted great bodily injury upon his victim, and who was adjudged a ward of the juvenile court in connection with some or all such offenses, escapes the reach of the Three Strikes law on the fortuity that he was not also adjudged
And under a literal interpretation of paragraph (D) as presently worded, even if in the prior juvenile proceeding giving rise to the qualifying adjudication the juvenile had been adjudged a ward of the court because of a Welfare and Institutions Code section 707, subdivision (b) offense, whether or not that offense is the same as the offense currently alleged as a strike, such would still not fully effectuate the drafters’ likely intent behind the four-pronged qualifying test because it would still lead to anomalous results: A prior juvenile adjudication for residential burglary or one of the other felonies noted above would qualify as a Three Strikes prior only if the juvenile happened to have also been declared a ward of the juvenile court in the same proceeding in connection with a Welfare and Institutions Code section 707, subdivision (b)-listed offense—whereas the juvenile’s second or third adjudication for repeats of that same offense later on in his juvenile criminal career, even if leading to a wardship declaration for such offense, will not later qualify as a Three Strikes prior if a wardship declaration was not also made in connection with a Welfare and Institutions Code section 707, subdivision (b)-listed offense in that later proceeding. Why should a string of prior juvenile adjudications of the same offense be treated differently for Three Strikes purposes on the mere fortuity that some arose from proceedings in which a declaration of wardship was also made in connection with another (Welf. & Inst. Code, § 707, subd. (b)) offense, and some did not?
in
I conclude the drafters of the Three Strikes law intended that paragraph (D) of section 667, subdivision (d)(3) prescribe a simple and straightforward requirement that a wardship declaration had to have been made in connection with the prior juvenile adjudication of any offense contained in the source list in paragraph (B) presently under scrutiny for qualification as a Three Strikes prior felony conviction. The omission in paragraph (D) of a parallel reference to offenses “described in paragraph (1) or (2) as a felony” (as found in paragraph (B)) was almost certainly drafters’ error or oversight, as inclusion of such a parallel reference would harmonize all four prongs of the statutory scheme and most clearly effectuate the purpose and intent behind the Three Strikes law.
All further statutory references are to the Penal Code unless otherwise indicated.
Indeed, one legislative committee report noted that “Under this bill, a prior juvenile adjudication would count as a prior conviction for sentencing purposes. This provision would apply if the person was 16 or older when adjudicated, and the offense committed was from the list of offenses enumerated in Welfare & Institutions Code Section 707(b) or if it was a serious or violent offense.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 971 (1993-1994 Reg. Sess.) as amended Jan. 26, 1994, p. 9, italics added.)
We need to refer back to the version of section 707, subdivision (b) in effect on June 30, 1993, because the Three Strikes law tells us that whenever it is referencing another statute, it is referring to the statute as it existed on that date. (§ 667, subd. (h).)
Although Justice Brown and I share many of the same concerns regarding the discordance between a strict and literal interpretation of paragraphs (B) and (D) of section 667, subdivision (d)(3) as presently worded, and the probable legislative intent underlying the statutory scheme, I cannot subscribe to her ultimate construction of the statute. Substituting the word “and” for “or” in paragraph (B) may be one way to address the equal protection concern hypothetically raised by this defendant, but it hardly “harmonizes the remaining provisions of section 667(d)(3) with minimal judicial interference.” (See conc. & dis. opn. of Brown, J., post, at p. 26.) Under that construction, prior juvenile adjudications for the offenses I have noted, which are listed as violent or serious felonies in sections 667.5, subdivision (c) and 1192.7, subdivision (c), but which are not also listed in Welfare and Institutions Code section 707, subdivision (b), could never qualify as strikes for Three Strikes sentencing purposes, a result even further at odds with the probable legislative intent than the strict and literal reading of the statute adopted by the majority. The Legislature has already signaled the manner in which a constitutional or other defect in the statutory scheme should be remedied— subdivision (i) of section 667 provides that, “If any provision of subdivisions (b) to (h), inclusive, or the application thereof to any person or circumstance is held invalid, that invalidity shall not affect any other provisions or applications of those subdivisions which can be given effect without the invalid provision or application, and to this end the provisions of those subdivisions are severable.” In my view, the constitutional concern would most appropriately be addressed “with minimal judicial interference” in a case in which it is actually presented, and then by simply declaring prior juvenile adjudications of the felonies giving rise to the equal protection problem unavailable for Three Strikes sentencing purposes by operation of subdivision (i).
Concurrence Opinion
I concur in the determination that defendant’s juvenile adjudication for residential burglary is not a strike as defined by Penal Code section 667, subdivision (d)(3) (section 667(d)(3); all unspecified statutory references are to the Penal Code). I cannot, however, subscribe to an interpretation of the statute that runs afoul of so many fundamental principles of statutory construction.
Resolving the internal inconsistencies in section 667(d)(3) has evoked considerable interpretive creativity. The Attorney General has urged the court to find “drafter’s error” and to rewrite section 667(d)(3) so as to bring subdivision (d)(3)(D) in parallel with subdivision (d)(3)(B) because this best effectuates the intent of the Legislature “to ensure longer prison sentences and greater punishment” for recidivists. (§ 667, subd. (b); see People v. Griggs (1997)
Granted, the latter construction does reconcile language that otherwise appears inherently conflicting. But that is its only virtue. The majority candidly acknowledges that in all probability neither the Legislature nor the electorate “subjectively contemplated this interpretation of paragraph (D).” (Maj. opn., ante, at p. 13.) While commendable, this candor cannot absolve a blatant transgression of the cardinal tenet that courts are to construe statutes so as “to ascertain and effectuate legislative intent” (People v. Gardeley (1996)
Several reasons suggest the majority is correct in perceiving its construction to be at odds with the likely intent of section 667(d)(3)(D). First, it admittedly “depends upon a close reading of the statutory language exactly as written.” (Maj. opn., ante, at p. 6.) In fact, it depends upon a significant amount of legal parsing and even then results in an incredibly awkward “harmonization” of the statute’s various provisions. If the Legislature and electorate had actually meant to accomplish such an end, they undoubtedly would have expressed their intent more plainly and directly.
Second, the majority’s construction of paragraph (3) of section 667(d) is not consistent with the terms of paragraphs (1) and (2) defining which adult convictions will constitute a “prior conviction of a felony” for purposes of the three strikes law. Under paragraphs (1) and (2) of section 667(d), the qualifying offenses are identified by reference to established external standards. A prior conviction for “[a]ny
Given the definitional structure of section 667, subdivision (d)(1) and (2), no reason appears to interject this multiadjudication criterion into section 667(d)(3). It does not assure that only the most serious juvenile adjudications are rendered strikes or that recidivists necessarily receive greater punishment. For example, a residential burglary committed by a juvenile who broke into someone’s house to take food because he was hungry after escaping from juvenile hall would be a strike. (See Welf. & Inst. Code, § 707, subd. (b)(22).) However, a juvenile who entered and took stereo equipment, jewelry, and guns but who was not on the lam would not have a strike. The disparity in culpability is evident; the disparity in consequences is anything but.
Finally, in a related vein, the majority’s interpretation complicates pleading and proof whenever the prior is serious or violent but not listed in Welfare and Institutions Code section 707, subdivision (b). The prosecution cannot simply allege a juvenile adjudication by reference to a set list of qualifying offenses, as it could under defendant’s proffered construction. Thus, for voluntary manslaughter (§§ 1192.7, subd. (c)(1), 667.5, subd. (c)(1)), rape committed by means other than force, violence, or threat of great bodily harm (§ 1192.7, subd. (c)(3)), simple kidnapping committed other than in the course of a carjacking and without infliction of bodily harm (§ 1192.7, subd. (c)(20)), a felony in which the defendant was alleged and found to have inflicted great bodily injury (§ 667.5, subd. (c)(8)), and residential burglary (§ 1192.7, subd. (c)(18)), further allegation of a Welfare and Institutions Code section 707, subdivision (b), wardship finding is essential.
Although defendant’s construction would eliminate these latter offenses as strikes for juveniles, that result is not irrational. Historically, an order adjudging a minor to be a ward of the court has not been treated as a criminal conviction “for any purpose.” (Welf. & Inst. Code, § 203; see also In re Joseph B. (1983)
Nor does this limit on qualifying offenses conflict with legislative intent. Both the Legislature and the electorate sought to ensure longer sentences for recidivists, but that goal in and of itself provides little guidance in determining
The gaps in correlating the majority’s interpretation with likely legislative intent alone should have sent the majority back to the drawing board, but these are not the only shortcomings. Its construction also violates the rule that “[a] statute should be construed whenever possible so as to preserve its constitutionality. [Citations.]” (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987)
Although incipient, the constitutional flaw in the majority’s construction is nonetheless fatal. (Cf. People v. Leng (1999)
Substituting “and” for “or” in section 667(d)(3)(B) overcomes this constitutional defect and harmonizes the remaining provisions of section 667(d)(3) with minimal judicial interference. Nor is this type of reformation without precedent. (See, e.g., People v. Skinner (1985)
Finally, despite its disclaimer (maj. opn., ante, at pp. 10-11), the majority interprets section 667(d)(3) contrary to the rule of lenity by which “ambiguous penal statutes are construed to favor the defendant. [Citations.]” (People v. Superior Court (Romero), supra,
Replacing “or” with “and” in paragraph (B) of section 667(d)(3) resolves the statute’s uncertainty and harmonizes its remaining provisions in a manner that preserves its constitutionality. Thus, despite the need for a minor reformation, this construction is eminently “reasonable” for purposes of invoking the rule of lenity. (People v. Overstreet, supra,