People v. Davis

MOSK, J.

I dissent.

Defendant was charged by information in the superior court with murder and attempted murder. For enhancement of sentence, he was alleged to have personally used a firearm in each. For the same purpose, under the legislative version of the so-called “Three Strikes” law (Stats. 1994, ch. 12, §§ 1-2), which is codified in Penal Code section 667, subdivisions (b) to (i) (hereafter sometimes section 667(b) to (i)),1 he was alleged to have suffered the following “strikes”: (1) a prior juvenile adjudication, under section 667(d)(3), for assault; (2) a prior juvenile adjudication, also under section 667(d)(3), for residential burglary; and (3) a prior felony conviction, under section 667(d)(1), for robbery. Defendant moved to dismiss both of the prior juvenile adjudication allegations. The superior court granted the motion and entered an order accordingly. In its judgment on appeal, the Court of Appeal affirmed as to residential burglary, but reversed as to assault.

The majority now proceed to affirm the Court of Appeal’s judgment, specifically, its reversal of the superior court’s order dismissing the prior juvenile adjudication allegation as to assault.

As I shall explain, they should not.

I

Section 667(c) provides that, “[n]otwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that” he *1104“has one or more prior felony convictions as defined in” section 667(d), “the court shall” sentence him as specified in section 667(b) to (i), which codify the Three Strikes law.

Section 667(d) states that, “ [notwithstanding any other law and for the purposes of’ section 667(b) to (i), “a prior conviction of a felony shall be defined” to include particular prior juvenile adjudications.

Section 667(d)(3), with which we are centrally concerned, further states:

“A prior juvenile adjudication shall constitute a prior felony conviction for purposes of sentence enhancement”—that is, shall amount to a strike—“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”—and therefore presumptively warranted trial of the juvenile in criminal court as an adult and not adjudication in juvenile court as a minor—or is “described ... as a felony” in section 667(d)(1) or (d)(2). (Section 667(d)(1) covers “violent” (Pen. Code, § 667.5, subd. (c)) and “serious” (id., § 1192.7, subd. (c)) felonies under California law. Section 667(d)(2) covers “[a] conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison. A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense that includes all of the elements of the particular felony as defined” as a “violent” or “serious” felony in California.)
“(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.” (Pen. Code, § 667, subd. (d)(3).)

It follows that section 667(d)(3) states four requirements that must be satisfied for a prior juvenile adjudication to qualify as a strike.

First, under section 667(d)(3)(A), the juvenile must have been at least 16 years old when he committed the offense resulting in the prior juvenile adjudication.

*1105Second, under section 667(d)(3)(B), the offense resulting in the prior juvenile adjudication must be one of the following: (1) the offenses listed in Welfare and Institutions Code section 707, subdivision (b), which are presumptively “adult-criminal” in nature (hereafter Welfare and Institutions Code section 707(b) offenses); (2) California “violent” or “serious” felonies; and (3) specified out-of-state felonies. This provision thereby defines the substantive scope of possible strikes for prior juvenile adjudications.

Third, under section 667(d)(3)(C), the juvenile must have been found by the juvenile court to be fit for juvenile court proceedings as a minor.

Fourth and final, under section 667(d)(3)(D), the juvenile must have been adjudged by the juvenile court to have committed at least one, presumptively “adult-criminal,” Welfare and Institutions section 707(b) offense. This provision thereby imposes a procedural precondition for any actual strike for prior juvenile adjudications within the substantive scope of possible ones.

II

Section 667(d)(3)(C) states one of the four requirements that must be satisfied for a prior juvenile adjudication to qualify as a strike under the Three Strikes law—viz., the juvenile must have been found by the juvenile court to be fit for juvenile court proceedings as a minor.

The juvenile court makes a finding of fitness only under Welfare and Institutions Code section 707. It does that only after it conducts a hearing on fitness. (See Welf. & Inst. Code, § 707.) It does that only pursuant to a motion raising a doubt about fitness. (See id., subd. (a).) The motion may be made by the prosecutor. (See ibid.) It may also be made by the juvenile court ex mero motu. (Green v. Municipal Court (1976) 67 Cal.App.3d 794, 798-804 [136 Cal.Rptr. 710].) And it may even be made by the juvenile himself. (E.g., Joey W. v. Superior Court (1992) 7 Cal.App.4th 1167, 1171-1173 [9 Cal.Rptr.2d 486]; In re Rodney F. (1988) 203 Cal.App.3d 177, 181-186 [249 Cal.Rptr. 424].)

To repeat: Section 667(d)(3)(C) requires a finding of fitness. That is what its words mean. That is the beginning of the matter and its end. (See Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 672-673 [47 Cal.Rptr.2d 108, 905 P.2d 1248] (conc. opn. of Mosk, J.).) We may not pass on the wisdom of statutes. (See, e.g., People v. Zapien (1993) 4 Cal.4th 929, 954 [17 Cal.Rptr.2d 122, 846 P.2d 704]; Wells Fargo Bank v. Superior Court (1991) 53 Cal.3d 1082, 1099 [282 Cal.Rptr. 841, 811 P.2d 1025].) Of course, we may not evaluate the general end that the Legislature has sought, *1106which, according to its expressed intent, is “to ensure longer prison sentences and greater punishment” for certain recidivists under certain conditions (Pen. Code, § 667, subd. (b)). But neither may we assess the specific means that it has chosen—which include the requirement of a finding of fitness.

In this cause, the superior court properly dismissed both the residential burglary and assault prior juvenile adjudication allegations. As to each, the finding of fitness required by section 667(d)(3)(C) is lacking. As to neither was there any motion raising a doubt about fitness; as to neither was there any hearing on fitness; and as to neither, as stated, was there any finding of fitness.

Beneath their discussion purporting to consider whether a finding of fitness must be express or may also be implied,2 the majority remove the very requirement of such a finding contained in section 667(d)(3)(C) by construing it away. They do not demand any motion raising a doubt about fitness; they do not demand any hearing on fitness; and, as stated, they do not demand any finding of fitness. All that they ask for is a prior juvenile adjudication against a juvenile who was at least 16 years old when he committed the offense in question. But that is already required by section 667(d)(3)(A). They say that section 667(d)(3)(C) “helps distinguish those offenses committed by minors 16 or over that are adjudicated in juvenile court rather than as adult offenses.” (Maj. opn., ante, at p. 1102.) It does not. Section 667(d)(3)(A) and (d)(3)(D) make that distinction. They need no help.3

The majority attempt to justify their removal of the requirement of a finding of fitness contained in section 667(d)(3)(C) by arguing that the retention of such a requirement “would so severely limit those juvenile adjudications that would qualify as ‘strikes,’ that such a result would seem to be at odds with the” Legislature’s expressed intent. (Maj. opn., ante, at p. 1102.) They fail to persuade.

*1107At the threshold, the majority’s argument comes close to passing on the wisdom of the requirement of a finding of fitness contained in section 667(d)(3)(C). That would be impermissible. But, contrary to the majority (maj. opn., ante, at p. 1102), we can surely conclude that it is not “irrational.” For we may deem it a kind of screening device, separating classes of juveniles—those as to whom a doubt about fitness had been raised (albeit subsequently resolved), and those as to whom such a doubt had not.

On the merits, the majority’s argument conjectures, and complains, that the requirement of a finding of fitness contained in section 667(d)(3)(C) might “severely limit” the substantive scope of possible strikes for prior juvenile adjudications against the Legislature’s expressed intent. Its conjecture is without basis: it provides no numbers, hard or soft. Its complaint is similar: it ignores that the intent is “to ensure longer prison sentences and greater punishment” for certain recidivists under certain conditions (Pen. Code, § 667, subd. (b))—including those with at least one prior juvenile adjudication with a finding of fitness, and excluding those with such an adjudication but without such a finding. Moreover, a limitation, even a severe limitation, of the sort referred to might not be out of place. The substantive scope of possible strikes for prior juvenile adjudications is broader than that for prior felony convictions properly so called. The latter comprises “violent” and “serious” California felonies and certain out-of-state felonies. The former, by contrast, embraces those same felonies and also reaches beyond to Welfare and Institutions Code section 707(b) offenses, which cover such otherwise uncovered crimes as bribery of a witness (Welf. & Inst. Code, § 707, subd. (b)(19)). Consequently, some offenses committed by a juvenile are possible strikes, but the same ones committed by an adult are not. Such a result is harsh and hard to justify. A limitation like that referred to might have a mitigating effect.

The majority also attempt to justify their removal of the requirement of a finding of fitness contained in section 667(d)(3)(C) by arguing that the retention of such a requirement “would evoke questions regarding . . . constitutional validity.” (Maj. opn., ante, at p. 1102.) Here too, they fail to persuade.

In one sense, the majority’s argument is too early. Questions regarding the constitutional validity of the requirement of a finding of fitness contained in section 667(d)(3)(C) have not yet been squarely raised. Answers may therefore be left to another day. As stated, such a requirement is not irrational, functioning as it does as a kind of screening device, separating out those juveniles as to whom a doubt about fitness had been raised. If the juvenile himself was the source of the doubt, there is no ground for concern: He made *1108an admission. If the juvenile court was the source, the matter is not much different: It must be presumed to have acted on a factual basis. Even if the source was the prosecutor, the same is true: he must enjoy the same presumption. (Cf. People v. Wheeler (1978) 22 Cal.3d 258, 278 [148 Cal.Rptr. 890, 583 P.2d 748] [holding that “in any given instance the presumption must be that a [prosecutor] exercising a peremptory challenge is doing so on a constitutionally permissible ground”].)

In another sense, the majority’s argument is too late. Here, the People have declared that the Three Strikes law in its entirety is “poorly drafted.” Concerns like theirs should have been addressed to the Legislature, as it was considering whether to include a requirement of a finding of fitness. They are now out of time, the Legislature having already included such a requirement in section 667(d)(3)(C).

Ill

For the reasons stated above, I would reverse the Court of Appeal’s judgment to the extent that it reverses the superior court’s order striking the prior juvenile adjudication allegation as to assault.

Werdegar, J., concurred.

The initiative version of the Three Strikes law (Prop. 184, § 1, as approved by voters, Gen. Elec. (Nov. 8, 1994)), which was enacted later but is “nearly identical” (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504 [53 Cal.Rptr.2d 789, 917 P.2d 628]), is codified in Penal Code section 1170.12.

In my view, a finding of fitness may be implied and need not be express. An express finding—contained in a declaration such as “the juvenile is in fact fit”—leaves nothing to be desired. An implied finding—inferable, for example, from a refusal to transfer the proceeding to criminal court after conclusion of a hearing on fitness—is sufficient.

The majority construe section 667(d)(3)(C) away assertedly in order to avoid making (d)(3)(A) “redundant”: at the time of the Three Strikes law, the juvenile court could make a finding of fitness only as to a juvenile who was at least 16 years old when he committed the offense resulting in the prior juvenile adjudication. (Maj. opn., ante, at p. 1102.) But at that time, as Justice Kennard explains in her dissenting opinion, it was about to be given the power to make such a finding as to a juvenile as young as 14 years old. (Dis. opn. of Kennard, J., post, at p. 1114.) Section 667(d)(3)(A) must therefore be considered anticipatory. It cannot be deemed “redundant.”