Filed 3 / 29 / 22 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re H. N. , a Person Coming Under the Juvenile Court Law. 2d Juv . No. B313698 (Super. Ct. No. YJ40388) (Los Angeles Count y)

THE PEOPLE,

Plaintiff and Respondent,

v.

H. N.

,
Defendant and Appellant.

By passing Proposition 83 (“Jessica’s Law”)

, did the voters intend to continue to classify the crime of possession of child pornography as a “ wobbler ” so that juv enile courts could continue to declare it as either a felony or a misdemeanor? We conclude they did.
H. N. , a minor , appeals an order of the juvenile court sustaining a Welfare and Institutions Code section 602 petition
with a finding that he po ssessed ch ild pornography

. (Pen. Code, § 311.11, subd. (a).) We conclude, among othe r things, that the juvenile c ourt err ed by not making an express finding per2

Welfare and Institutions Code section 702 whether the Penal
Code section 311.11

, subdivision (a) offens e was a felony or a misdemeanor

. We strike the court’s maximum term of confinement finding because H.N. was placed on home probation.
We remand to the juvenile court to make a finding whether the
offen se is a felony or a misdemeanor , but otherwise affirm

. FACTS
H.K. testified that she had a “fri endship” relationship with
H.N. In October 201 9, H.N. came over to her house. H.K. was 15 years old. H. N. was also 15 years old. H.N. and H.K. had
“co nsensual” sexual “intercourse.” H.N. videotaped this sex ual encounter without H.K.’s knowledge or consent

. T he People filed a Welfare and Institutions Code section 602 petition alleging H.N. had violated “PENAL CODE [section] 311.11(a), a Felony .” (Italics added

. ) T he juvenile court sustained the petition and found H.N. possessed child pornography. The court placed H.N. on home probation. It found a maximum term of confinement to be three year s. DISCUSSION Welfare and Institutions Code Section 702 Finding
H. N. contends the juvenile court erred by not mak ing a required Welfare and Institutions Code section 702 finding
whether the Penal Code section 311.11

, subdivision (a) offense was a felony or a misdemeanor. The People contend a Welfare and Institutions Code section 702 finding was not required becaus e the possession of child pornography offense is a felony, not a wobbler or a misdemeanor.
Welfare and Institutions Code s ection 702 provides, in relevant part, “If the minor is found to have committed an offense3

which would in the case of an adult be pu nishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.” A Welfare and Institutions Code section 702 finding is ma ndatory where the offense is a wobbler, and, in appropriate cases

, a remand m ay be required for the juvenile court to make the finding. ( In re Manzy W. (1997) 14
C al. 4th 1199, 1209.)

Penal Code Section 311.11

, Subdivision (a) 1
S ection 311.11, subdivision (a) provides, in relevant part, “Every person who knowingly possesses or con trols any matter

. . . that contains or incor porates in any manner

, any film or filmstrip, the production of which involves the use of a person under 18 years of age, knowing that the matter depicts a person under 18 years of age personally engaging in or simulating sexual
conduct .

. . is guilty of a felony and shall be punished by imprisonment in the state prison, or a county jail for up to one

year , or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both the fine and imprisonmen t.” (Italics added.)
T he juvenile court sustained the petition . It neglected to
declare the section 311.11 offense t o be a felony or a
misdemeanor.
H.N. notes the current statute was an amendment of a prior 2006 statute which was a wobbler

, all owing th e crime to be
sentenced a s a felony or a misdemeanor. ( § 311.11. ) The prior law listed the punishment as either a state prison term or a county jail term of one year. H e claims the current statute “retained a county jail term of one ye ar” that “strongly suggests”

1 All further statutory references are to the Penal Code unless otherwise stated.4

an intent “to make the section 311.11, subd ivision (a) offense a
wobbler.” We agree

. W hen an offense is punishable by either a state prison or

cou nty jail term, it is normally considered a “wobbler

, ” meaning

t hat it can be either a felony or a misdemeanor. ( In re Grant (2014) 58 Cal. 4th 469, 475

, fn. 3.) Section 311.11 contains the alternative sentencing language of a wobbler. In Grant

, the court
did not decide whe ther this offense was a wobbler because Grant, an adult, pled guilty to a felo ny. But in dicta it said there appeared to be a “potential anomaly” because the Legislature designated this offense “only as a felony ” when it also maintained the alternative sentencing language in the statute. ( Grant , at

p. 475, fn. 3. )
In People v. Westerfield (2019) 6 Cal. 5th 632, 683, footnote 6, our Supreme C ourt said the 2006 version of section 311.11 was a wobbler. The People note the court also said the current 2007 version of this statute designates this offense “a felony.” ( Westerfield , p. 683, fn. 6 .) But the People’s reliance is misplaced.
I n Westerfield

, the court made this brief reference in a footnote

. The defendant was convicted under the former version of this

statute. The court was not asked to decide, nor did it decide

, whether the current statutory offense could also be interpreted to
be a wobbler. We “do not treat cases” as “authority” for positions not considered on appeal. ( People v. Fontenot (2019) 8 Cal. 5th 57, 73.)
Th e People highlight a phrase in section 311.11 mention ing

“ felony ” and claim it is dispositive. W e do not view that phrase in
isolation. ( People v. Nelson (2011) 200 Cal.App. 4th 1083, 1098.) We view the entire language of the statute in context. ( Ibid .) The label placed on a crime may not be dispositive because a5

crime may be a wobbler based on “the punishment prescribed.” ( People v. Park (2013) 56 Cal. 4th 782, 789.) The Legislature added the phrase “is guilty of a felony” to
the curr ent 2007 version of section 311.11 after the voters passed Propositio n 83. (Stats. 2007, ch. 579, § 38.) B ut it also included the alternative sentencing language of the prior 2006 statute.
I t i s reasonabl e to conclude the lawmakers and the
electorate: 1) intended to maintain the wobbler status of th is offense, and 2) i ntended “the cha racterization of the crime” would be “dependent upon the actual punishment imposed.” ( People v. Terry (1996) 47 Cal.A pp. 4th 329, 332.)
Because t he amendment of section 311.11 occurred due to the passage of Prop osition 83 (t he Sexual Pre dator Punishment

a nd Control Act)

, we apply the following rule s : 1) “ ‘ W hen interpreting statutory provisions enacted by voter initiative or legislative action, our primary purpose is to ascertain and
effectuat e the intent of th e enactors ’ ” ( In re E.G. ( 2016) 6 Cal.App. 5th 871, 876 ) ; and 2) “ ‘[t] o determine this intent, we consider the plain, commonsense meaning of the language used, and construe the language in the context of the overall
enactment.’ ” ( Ibid .) A relevant fac tor in determining the voter s ’
intent is the ballot argument in favor of the p roposition

. ( C

- Y Development Co. v. City of Redlands (1982) 137 Cal.App.3d 926, 933.) Proponents of Proposition 83 claimed amending this
statute would “ [a]llow prosecutors to charge criminals who

possess child pornography with a felony .” (L.A. County Voter Information Guide, Gen. Elec. (Nov. 7, 2006) (hereafter “Guide”) argument in favor of Prop. 83 by the Legislative Analyst, p. 46)

, some italics added.)6 H.N. notes Proposition 83 only advised voters th at prosecutors would be allowed to consider the offense as a felony.
It does not state they would be req uired or mandated to do so. This is consistent with the offense remaining a wobbler. One court in dicta concluded that “[a]s a result of Proposition 83

, ” this crime “can now be punished as a felony or misdemeanor.” ( People v. Manfredi (2008) 169 Cal.App. 4th 622, 634.) The People suggest this offense is a “straight felony” that precludes the juvenile court from entering a disposition of anything less than a felony. But a straight felony cannot be alternatively punished by a one

- year county jail term and a fine. ( People v. Beebe (1989) 216 Cal.App.3d 927, 930.) Had the Legislature and electorate intended this crime to be a straight felony

, they would have included only a state prison term as the punishment. ( Ibid

. ) W here the Legislature classifies the crime as a felony “without providing for alternative punishment

, ” it is a straight felony. ( People v. Mauch (2008) 163 Cal.App. 4th 669, 674.)
But where lawmakers provide the alternative sentencing option in that statute

, it provides the authority to sentence it as a
misdemeanor. ( Ibid. ) In Proposition 83

, voters were advise d that “existing provisions” of section 311.11 that are “proposed to be
del eted are printed in strike out type.” (Guide, supra , text of proposed laws

, p. 127

. ) But the amended portion of this offense required by the proposition did not strike out the alternative punishment of “up to one year” in a county jail. ( I d. at p. 128.)
T he People’s position t hat violation of this statute must always be a felony assumes lawmakers and the electorate
believed the offense involves such a uniform level of seriousness and culpability that all violators must be felons. But the re are7

levels of seriousness and culpability in committing this offense

. The most serious violation s involve people who stockpile large amounts of this material, as opposed to defendants who possess a single item, as in this case. ( § 311.11, subd. (c) (1).) There is a more egregious nature of the crime where it includes possession of images of child “ ‘ sexual sadism ’ ” or “ ‘ sexual masochism, ’ ”
elements not involved here. ( Id. , subd. (c ) (2).) This shows an
intent that the higher and lower levels o f this offense shou ld be treated differently in determining punis hment and in deciding whether the offense, based on the facts in a given case, is a felony
or a misdemeanor. H.N. claims that even if the statute may be considered ambiguous

, the rule of lenity should apply in his favor. We agree. “[W]hen a statute defining a crime or punishment is susceptible of two reasonable interpretations, the appellate court should ordinarily adopt that interpretation more favorable to the
defendant.” ( People v. Avery (2002) 27 Cal. 4 th 49, 57.) In this case the reasonable interpretation of the statutory language is
that the crime is a wobbler. ( People v. Manfredi

, supra , 169
C al.App. 4th at p. 634 [the “defendant is entitled to the benefit of the ambiguity in section 311.11 ”].)

A Str aight Felo ny f

or a Child Offender?
But even a ssuming the voters had a general intent to make this crime a straight felony

, the relevant question is who they

want ed to target for the felony label. Proposition 83 was en titled
“SEX OFFENDERS. SEXUALLY VIOL ENT PREDATORS. PUNISHMENT, RESIDENCE RESTRICTIONS AND
MONITORING. INITIATIVE STATUTE .” (Guide, supra , text of Prop. 83, p. 42

. ) Voters were told, “Proposition 83

– JESSICA’S
LAW

– will protect our children by keeping child molesters in8

prison longer ; keepi ng them away from schools and parks; and monitoring their movements after they are released.” ( Id.

, argument in f

avor of Prop. 83, p. 46, italics added. ) Proposition

8 3 amended section 311.11 to allow prosecutors “to charge
criminals who possess child po rnography with a felony

. ” ( Ibid

. , some italics added. )
But ward s of the juvenile court are not class ified as criminals ( Welf. & Inst. Code, § 203) and their cases “ ‘are
resolved b y dispositions, not sentences.’ ” ( In re E.G.

, supra , 6 Cal.App. 5th at p

. 876.) In Proposition 83

, voters were advised that those convicted of this offense would be “guilty of a felony” because “[p]redators often use child pornography to aid in their molestation.” ( Guide,

supra , text of proposed laws

, p. 127

. )
V oters wer e not asked whether a st raight felony should be applied to a child who commits this offense and who i s not a sexual predator or child molester. They were not asked to reform j uvenile court law

. We do not assume voters intended to cover

areas that were no t related “to the general object” of the proposition ( Senate of the State of Cal. v. Jones (1999) 21 Cal. 4th 1142, 1158) or were not “expressed or strongly implied” in the proposition’s text. ( Farmer’s Ins. Exchange v. Superior Court (2006) 137 Cal.App. 4t h 842, 858.) The subject matter of Proposition 83 involved increased prison time for sexual predators, screening them before they are
released

, and monitoring them after they are released from

p rison. It did not involve reforming juvenile court disposi tions for
child wards who possess child pornography

. W e may not infer Proposition 83 was intended to change the practice of juvenile

courts declaring the offense to be a misdemeanor for child wards9

because the proposition’s “voter information materials” d id not “make any reference” to changing that practice. ( People v.
Valencia (2017) 3 Cal. 5th 347, 365 .) Adults who commit this crime may be classified as felons. But that classification would not necessarily be appropriate in all cases involving a child ward

. The People have not shown the voters intended to place a minor teenager in a juvenile court proceeding in the same felony category for this offense as an adult sexual predator in criminal court. “[T]he teenager [is] less able to evaluate the cons equences of his or her conduct while at the same time he or she is much more apt to be motivated by mere emotion or peer pressure than
is an adult.” ( Thompson v. Oklahoma (1988) 487 U.S . 815, 835, plur. opn

. ) Consequently, “the Court has already endorsed the proposition that less culpability should attach to a crime committed by a juvenile than to a comparable crime committed by
an adult .” ( Ibid

. , italics added. ) The People’s claim that their position falls within the words of the statute is thus not
di spositive here. “ ‘ “ [A] thing may be within the letter of the statute and yet not within the statute, because not within its spi r it nor within the inte ntion of its makers. ” ’ ” ( Westfall v. Swoap (1976) 58 Cal.App.3d 109, 116.)
The California Legislat ure has been concerned about applying adult criminal liability standards for minors because they have “the diminished culpability of youth

, ” their brains are

no t fully developed

, and they lack the judgment possessed by
adults. ( In re Williams (2020) 57 Ca l.App. 5th 427, 434 ; see also Thompson v. Oklahoma

, supra , 487 U.S. at p. 835.) Lawmakers

are awar e that juvenile court wards are substantially different
from adult court defendants and “ [ j ] uveniles are not directly10

charged with crimes.” ( In re Hector R

. (1984) 152 Cal.App.3d 1146, 1154.) “That criminal and juvenile justice share a common value does not mean that every provision of the Penal Code designed to implement that value must be r ead into the Juvenile
Court Law

. . . .” (

Alex T. v. Superior Court (1977) 72 Cal.App.3d 24, 30.) Unlike an adult defendant in criminal court, “ [t] he dominant purpose of the Juvenile Court Law remains the welfare
of the minor.” ( Id

. at p. 33.) The parties highlight what they consider to be the conflicting language of t he statute. But they have not considered the application of this statutory o ffense when applied to adult
offenders and child offenders. “ ‘ W e must harmonize “ the various parts of a statutory enactment

. . . . ” ’ ” ( In re Greg F. (2012) 55
Cal. 4th 393, 4 06.) The “guilty of a felony” and the alternative sentencing language are in harmony with respect to the
distinction between adult and child offenders. They further the purposes of both Proposition 83 and Welfare and Institutions
Code section 702 by: 1) allowing adult sexual offenders

, who are
the target of Proposition 83

, to be c harged with a felony; and 2) giving juvenile courts discretion to declare the o ffense a misdemeanor involving certain child offender s

. The statute and the wobbler language in P ropositi on 83 prevent those who were not the target of Proposition 83 from automatically fall ing within the straight felony classification.
Lawmakers and the electorate know children use the I nternet to “regularly search for online pornography.” ( United S tates v. American Library Assn. (2003) 539 U.S . 194, 200; Kathleen R. v. City of Livermore (2001) 87 Cal.App. 4th 684, 690.) A substantial percentage of teenagers engage in “sexting” pornographic images.
B ut the conduct of these children is substantially different from11

the actions of adult pedophiles , and making a distinction in the legal treatment between these two groups is necessary to prevent a miscarriage of justice . ( Thompson v. Oklahoma

, supra , 487 U.S. at p. 835; McLaughlin, C rime a nd Punishment: Teen Sexting
In Context (2010) 115 Penn St. L. Rev. 135, 140, 173; Mummert

, Sexting a nd The Law : How Lack of Reform in California Put Teenagers in Jeopardy o f Prosecution Under Child Pornography
Laws Enacted to Protect Them (2010) 38 W.St. U

. L.Rev. 71, 76. )
Classif ying adult offenders who possess child pornography as felons furthered the goal of the proposition by protecting
children from dangerous pedophiles who view the m aterial to stimulate their pedophilia tendencies and potential actions

. But
th e au tomatic inclusion of children who view this material because of childhood curiosity into the straight felony category would not further the main goal of the proposition and could be
detrimental to those children. The Legislature and the electorate may ha ve reasonably
believed that a juvenile court should therefore have the authority

to decide whether classifying the offense as a felony would n ot be
suitable for a child who may need counsel ing

, or in those cases where the child, d ue to immaturity or other youth

- related

reasons , possessed the material

. They could reasonably have intended that in such cases the juvenile court should have the
discretion to determine whethe r calling this a felony would be detrimental to the child’s future development or would not further the purposes of juvenile court rehabilitation. ( In re E.G

., supra , 6 Cal.App. 5th at p. 883.) T his offense s hould be a wobbler
in t hose case s. L awmakers and the electorate knew the main goal of juvenile court s is to apply “maximum flexibility ” to achieve a just12

result based on the individual circumstances of each case for the
benefit of chil d wards

. ( In re James R. (2007) 153 Cal.App. 4th 413, 432.) Treating this offense as a wobbler for children enables
the courts to fully exercise their aut hority to achieve that goal. Treating it as a straight felony limits the scope of their fl exibility, impedes that goal, and is a result that was not anticipated by
lawmakers and the electorate.
The juvenile court erred by not deciding whether the
offens e was a felony or a misdemeanor.

Maximum Term of Confinement Finding
The juvenile court placed H. N. “ HOME ON PROBATION .”
But it also found H. N. “may not be held in physical confinement
f or a period to exceed 3

- years.” The parties correctly note that t he juvenile court’s three

year maximum term of confinement fin ding must be stricken. “[W]here a juvenile court’s order includes a maximum confinement term for a minor who is not removed from parental custody, the remedy is to strike the term.” ( In re A.C

. (2014) 224 Cal.App. 4th 590, 592.)13 DISPOSITION The maximum term of confinement finding is stricken. T he case is remanded to the juvenile court for a finding whether the
section 311.11 offense is a felony or a misdemeanor. If the court
finds it is a mis demeanor

, it shall modify the remaining disposition orders to be consistent with a misdemeanor offense. In all other respects

, the order sustaining the petition is affirmed.
CERTIFIED FOR PUBLICATION.

GILBERT, P. J.
We concur:

PERREN, J.

TANGEMAN, J.14 Nancy L. Newman, Judge

Superior Court County of Los Angeles

______________________________

Mary Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta

, Attorney General, Lance E. Winters

, Chief
Ass istant Attorney General

, Susan Sullivan Pithey

, Assistant Attorney General

, Noah P. Hill and Thomas C. Hsieh, Deputy Attorney s General, for Plaintiff and Respondent.