Filed 5/16/14 In re Michael H. CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re MICHAEL H., a Person Coming 

Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL H.,

Defendant and Appellant.

 D063833

 (Super. Ct. No. J211-796)

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

Browder A. Willis III, Judge. Affirmed.

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

Appellant.

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

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

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

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

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

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

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

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

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

to this code). We disagree.

FACTS

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

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

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

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

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

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

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

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

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

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

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

terms of probation and continued with the YOU.
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In 2013, the court held a detention hearing regarding allegations that Michael 

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

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

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

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

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

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

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

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

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

this determination.

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

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

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

707(b).

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

years.

DISCUSSION

A. General Legal Principles

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

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

later, unless the offender has been adjudicated of an offense listed in section 707(b), in 
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which case, jurisdiction extends over him or her until his or her 25th birthday. (Welf. & 

Inst. Code, § 1769.)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

relevant to an allegation that was dismissed pursuant to a plea bargain if it is 
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transactionally related to the offense to which the defendant pleaded guilty. (Id. at p. 

849.)

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

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

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

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

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

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

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

B. Analysis 

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

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

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

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

We reject these arguments.

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

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

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

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

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

certain offenses, while including others, is indicative of intent.
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However, Michael acknowledges the holding in Pedro C., that assault with a 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

with force likely to produce great bodily injury.

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

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

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

Pedro C. analysis that assault with a deadly weapon in subsumed within the meaning of 
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assault with force likely to produce great bodily injury. (Pedro C., supra, 215 

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

a contrary view or interpretation has been expressed.

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

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

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

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

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

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

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

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

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

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

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

provision stand in relative balance. (Ibid.)

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

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

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

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

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

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

find no egregious ambiguity or uncertainty in section 707(b) such that the court must 
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simply guess as to what was intended by that statute. Accordingly, the rule of lenity does 

not compel a different result.

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

falls within the purview of section 707(b).

CONCLUSION

The judgment is affirmed.

MCINTYRE, J.

WE CONCUR:

BENKE, Acting P. J.

AARON, J.