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Filed 4/18/14 In re J.D. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In re J.D., a Person Coming 

Under the Juvenile Court Law.

 H039960

 (Monterey County

 Super. Ct. No. J47224)

THE PEOPLE,

Plaintiff and Respondent,

v.

J.D.,

Defendant and Appellant.

On appeal, minor J.D. challenges the juvenile court's order committing him to the

California Department of Corrections and Rehabilitation, Division of Juvenile Facilities 

(DJF) on the most recently sustained juvenile wardship petition. That petition alleged 

that, on or about April 28, 2013, minor had committed attempted murder (Pen. Code, 

§§ 187, 664). (See Welf. & Inst. Code, §§ 602, subd. (a), 725, subd. (b), 800.)

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 Minor 

fully admitted that allegation and the additional allegations that he had committed the 

offense for the benefit of, at the direction of, and in association with a criminal street 

 

1 All further statutory references are to the Welfare and Institutions Code unless 

otherwise specified.
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gang (Pen. Code, § 186.22, subd. (b)(1)(C)) and, in the commission of the offense, he or 

another principal intentionally and personally discharged a firearm (Pen. Code, 

§ 123022.53, subds. (c) & (e)(1)). Attempted murder is a section 707, subdivision (b), 

offense. (See § 707, subd. (b)(12).) Minor had previously admitted a prior petition's

allegations that, on or about May 15, 2013, he committed four specified offenses, none of 

which were section 707, subdivision (b), offenses. Thus, the attempted murder was not 

minor's most recent offense.

Section 733 provides in pertinent part: "A ward of the juvenile court who meets 

any condition described below shall not be committed to the Department of Corrections 

and Rehabilitation, Division of Juvenile Facilities: . . . [¶] (c) The ward has been or is 

adjudged a ward of the court pursuant to Section 602, and the most recent offense alleged 

in any petition and admitted or found to be true by the court is not described in 

subdivision (b) of Section 707 or subdivision (c) of Section 290.008 of the Penal Code"

(hereinafter section 733(c)).

Minor now contends that (1) "the most recently committed offense rather than the 

most recent petition filed determines whether a ward may be committed to" the DJF and 

(2) the juvenile court abused its discretion by ordering him committed to the DJF. In 

light of the Supreme Court's recent decision in In re D.B. (April 3, 2014, S207165) ___ 

Cal.4th ___ [2014 Cal. LEXIS 2468] (D.B.), we conclude that minor was ineligible for 

commitment to the DJF and reverse.

I

Procedural History

Previous Petition

A juvenile wardship petition, filed May 17, 2013, alleged that, on or about 

May 15, 2013, minor committed four crimes: (1) first degree residential burglary (Pen. 

Code, § 459), (2) misdemeanor vehicle tampering (Veh. Code, § 10852), 
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(3) misdemeanor attempted vehicle tampering (Veh. Code, § 10852; Pen. Code, § 664), 

and (4) misdemeanor resisting an officer (Pen. Code, § 148, subd. (a)(1)).

On May 28, 2013, minor waived his trial rights and admitted the violations alleged 

in the foregoing petition.

The probation report for the disposition hearing on the May 17, 2013 petition 

indicated that the police had responded to a report of a residential burglary in progress. A 

witness observed two teens, one later identified as J.D., unsuccessfully try to open a 

garage door and then proceed to another address, where the other teen began to pull the 

mesh screen out of the garage window and J.D. began to climb through the window. The 

witness told the teens that he was calling the police; they began to walk away "while 

yelling profanities and displaying gang signs." A neighbor arrived home in his vehicle 

and the witness and the neighbor followed the teens. They observed J.D. and the other 

teen "enter into a parked vehicle and look through the vehicle's contents." The neighbor 

then witnessed them exit the vehicle and unsuccessfully try to enter a second vehicle.

According to the probation report, the police arrived, located two teens, who were

later identified as minor and a 15-year-old male named Raul, walking away from the 

area. An officer directed them to stop and sit on the ground. Raul attempted to flee while 

the officer was attempting to handcuff minor. While the officer "detained Raul," minor 

"attempted to stand up"; the officer returned to minor and detained him. The officer 

smelled alcohol emanating from both minor and Raul and they both admitted they had 

been drinking alcohol earlier in the day.

The probation report related that, when minor was interviewed at juvenile hall, he

acknowledged going through an open vehicle. Minor stated that he had "admitted to the 

charges in order to resolve his case and be released from custody" but denied "any 

involvement in the residential burglary." 

The probation report stated that minor acknowledged that a few of his friends 

associated with "Northerners." During the 2012-2013 school year, minor had "received 
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two school write-ups . . . for 'flashing gang signs' and for spelling 'XIV' with 'letter 

stickers' on his worksheet." 

It indicated that minor had been referred to probation in 2012 for his possession of 

a dirk or dagger. He was "placed on Intake Diversion and . . . assigned to complete the 

COPS-Aggressive Offender class." Minor "failed to attend the class and the case was 

closed noncompl[ia]nt on June 14, 2012."

On June 12, 2013, the court declared minor to be a ward of the court. It placed 

him under the supervision of a probation officer under "Full Gang Terms and Conditions 

of Probation" as specified. Nothing in the record suggests that, at the time of disposition 

of this previous petition, the D.A. or the court had any inkling that minor had also 

committed, a short time before the admitted crimes, an attempted murder for the benefit 

of a gang.

Current Petition

A juvenile wardship petition, filed June 19, 2013, alleged that, on or about 

April 28, 2013 (shortly before the previously admitted crimes), minor attempted to 

commit the crime of willful, deliberate, and premeditated murder (Pen. Code, §§ 187, 

subd. (a), 664). It further alleged that the offense was committed for the benefit of, at the 

direction of, and in association with a criminal street gang (Pen. Code, § 186.22, subd. 

(b)(1)(C)). It alleged that minor was a principal and, in the commission of the offense, at 

least one principal personally and intentionally discharged a firearm (Pen. Code, 

§ 12022.53, subds. (c) & (e)(1)). It contained notice of the court's authority to rely upon 

previous sustained petitions to aggregate the maximum period of confinement and 

petitioner's intent to move for such aggregation.

On July 12, 2013, minor admitted the allegations of the petition pursuant to an 

agreement with the district attorney (D.A.) that the D.A. would not request a commitment 

to DJF. The juvenile court found the allegations were true as alleged.
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On July 26, 2013, the juvenile court determined that DJF had programs that would

probably benefit minor, the best interests and welfare of minor required a commitment to 

the DJF, and less restrictive alternatives were ineffective and inappropriate. It also found 

that protection of society required a secured facility. The court ordered him continued as 

a ward of the court and committed him to the DJF. 

A formal order of commitment was filed on July 30, 2013. It states: "The mental 

and physical condition and qualifications of this youth render it probable that the youth 

will benefit from the reformatory . . . discipline or other treatment provided by the 

Division of Juvenile Facilities."

II

Application of Section 733

Minor contends that "in light of the plain terms of the statute, and consistent with 

its intent and purpose, . . . section 733 prohibited his placement to [the DJF] where his 

most recently committed offenses did not qualify for such commitment . . . ." " 'As in 

any case involving statutory interpretation, our fundamental task here is to determine the 

Legislature's intent so as to effectuate the law's purpose.' (People v. Murphy (2001) 25 

Cal.4th 136, 142 . . . .) 'We begin with the plain language of the statute, affording the 

words of the provision their ordinary and usual meaning and viewing them in their 

statutory context, because the language employed in the Legislature's enactment 

generally is the most reliable indicator of legislative intent.' (People v. Watson (2007) 42 

Cal.4th 822, 828 . . . ; accord, Catlin v. Superior Court (2011) 51 Cal.4th 300, 304 . . . .) 

The plain meaning controls if there is no ambiguity in the statutory language. (People v. 

King (2006) 38 Cal.4th 617, 622 . . . .) " (People v. Cornett (2012) 53 Cal.4th 1261, 

1265.) But courts " 'will not give statutory language a literal meaning if doing so would 

result in absurd consequences that the Legislature could not have intended. [Citations.]' 

(In re J.W. (2002) 29 Cal.4th 200, 210 . . . .)" (D.B., supra, ___ Cal.4th at p. ___ [p. 5].)
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Minor relies on V.C. v. Superior Court (2009) 173 Cal.App.4th 1455, which was 

disapproved in In re Greg F. (2012) 55 Cal.4th 393, 415 (Greg F.), to the extent it held 

that "section 733(c) must always override the juvenile court's ability to dismiss a 

delinquency petition under section 782." Greg F. stated that "[h]aving granted the minor 

leniency by placing [a minor] on probation for a DJF-qualifying offense, the court retains 

discretion to impose a DJF commitment if the minor violates that probation" by 

committing a new offense. (Greg F., supra, 55 Cal.4th at p. 408.) It concluded that a 

juvenile court could dismiss a subsequent section 602 petition pursuant to section 782 to 

avoid the bar of section 733(c) where "the juvenile court, in its discretion, finds that the 

dismissal is required by the interests of justice and the welfare of the minor." (Id. at p. 

420.) The court raised but did not resolve the potential problem resulting where a minor 

"commits a string of violent acts" and "the crime spree happened to end with a 

nonqualifying offense." (Id. at p. 412.)

Very recently, in D.B., supra, ___ Cal.4th ___, the Supreme Court held that a 

minor cannot be committed to the DJF where a section 602 petition "alleges a minor has 

committed a series of criminal offenses, including serious or violent offenses" and "the 

last offense in the series is nonviolent." (Id. at p. ___ [p. 1].) The court stated: "The 

statute premises DJF eligibility on the nature of a minor's 'most recent offense' alleged in 

any section 602 petition and admitted or found true by the court. When a law is 

unambiguous, we must conclude the Legislature meant what it said even if the outcome 

strikes us as unwise or disagreeable. The plain language of section 733(c) mandates that 

a minor may not be committed to DJF unless the most recently committed offense that is 

alleged in any wardship petition, then admitted or found true, is listed in section 707(b) or 

Penal Code section 290.008(c)." (Id. at p. ___ [p. 2].)

The court explained: "The statute premises DJF eligibility on the nature of 'the 

most recent offense alleged in any petition and admitted or found to be true by the court.'

(§ 733(c), italics added.) Plainly, this language refers to the last offense that was 
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adjudicated to have been committed by the minor. A minor can be committed to DJF 

only if this particular offense is listed in section 707(b) or Penal Code section 

290.008(c)." (Id. at p. ___ [p. 8].)

In D.B., the Supreme Court observed that "[p]remising DJF eligibility on the 

nature of the most recently committed offense could thus reward a minor for committing 

more crimes. (Id. at p. ___ [p. 10].) It recognized that "because section 733(c) examines 

only the last offense committed, the statute will sometimes require that currently violent 

offenders and sex offenders be placed in local settings with juveniles whose offenses are 

far less serious." (Id. at p. ___ [p. 10].) The court acknowledged that "[t]hese potential 

consequences are certainly troubling." (Id. at p. ___ [p. 10].)

Nevertheless, the Supreme Court determined that the consequences were not "so 

absurd that we must override the plain meaning of the statutory language." (Id. at p. ___

[p. 11].) It explained: "To justify departing from a literal reading of a clearly worded 

statute, the results produced must be so unreasonable the Legislature could not have 

intended them. (See Cassel v. Superior Court (2011) 51 Cal.4th 113, 136.) We cannot 

so conclude here. Section 733(c) was enacted as part of comprehensive realignment 

legislation. (Greg F., supra, 55 Cal.4th at p. 409.) The Legislature's primary purpose in 

enacting the statute was to reduce the number of juvenile offenders housed in state 

facilities by shifting responsibility to the county level ' "for all but the most serious youth 

offenders." ' (In re N.D. (2008) 167 Cal.App.4th 885, 891; see Greg F., at pp. 409–410.) 

Although reasonable minds may debate the wisdom of the chosen approach, decisions 

about how to limit DJF commitments are the Legislature's to make." (Id. at p. ___ [p. 

11].)

The Supreme Court concluded: "[Section 733(c)] prohibits a DJF commitment 

unless the most recent offense alleged in any petition and admitted or found true is listed 

in section 707(b) or Penal Code section 290.008(c). (§ 733(c).) We are not free to 

rewrite the law simply because a literal interpretation may produce results of arguable 
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utility. The Legislature, of course, remains free to amend section 733(c) if the language it 

has enacted is now understood to create unintended consequences." (Id. at p. ___ [p.12].)

We have here another unintended consequence of section 733(c) as written. Since 

section 733(c) precluded a DJF commitment because minor's most recent offense was not 

a qualifying offense, the court lacked authority to order minor committed to the DJF for 

his recent commission of attempted murder, which was done for the benefit of a criminal 

street gang and involved a principal's intentional and personal discharge of a firearm.

DISPOSITION

The judgment is reversed for the limited purpose of vacating the dispositional 

order committing minor to the DJF. The matter is remanded to the juvenile court with 

instructions to vacate its DJF commitment order and conduct a new disposition hearing.

_________________________________

ELIA, J.

WE CONCUR:

______________________________

RUSHING, P. J.

______________________________

PREMO, J.