Majority
Opinion
Statement of the Case
Appellant was found to be a person within Welfare and Institutions Code section 602 in that he committed forgery (Pen. Code, § 470, a fel
Although appellant’s equal protection and double punishment arguments must fail, he does make two meritorious contentions: (1) that the application of paragraph 3 of Welfare and Institutions Code section 726 to his forgery violation, which was committed béfore October 1, 1977 (the effective date of that legislation), works an ex post facto effect in violation of the federal and state Constitutions; and (2) that the juvenile court erred by not declaring whether appellant’s battery and forgery offenses were felonies or misdemeanors. The court also erred in aggregating the period of appellant’s physical confinement contrary to the provisions of Penal Code section 1170.1, subdivision (a) made applicable to juvenile proceedings by paragraph 4 of Welfare and Institutions Code section 726. Accordingly, we order remand for a new dispositional hearing.
The Evidence
On September 8, 1977, appellant took three blank checks from the home of an uncle, Jack Brady; he made one of the checks out to himself for $100, forged his uncle’s name, and cashed the check at a liquor store.
On September 28, appellant was taken into custody by the Kern County Sheriff’s office for disorderly conduct. The next day he was charged with forgery and detained in custody pending a prima facie hearing on October 4. On that day, he was released from custody on home supervision.
On October 12, appellant left his mother’s home in violation of the court’s order placing him on home supervision. He was located the next day by Deputy Probation Officer Burrow and Group Supervisor Tom Ferguson at the home of his sister, Debra Robertson. Robertson admitted the officers into her home and led them to a second story
Appellant admitted having resisted arrest but testified that he had no recollection of hitting Officer Burrow upon awakening. He stated that when he first came to his senses he was out of bed and the officers were six feet away from him, standing by the door. He further denied having struck Officer Burrow during the chase, claiming he was by then much too tired to have put up further resistance. Appellant also denied forging and cashing the check.
Equal Protection
Appellant’s equal protection argument concerning the mandatory maximum term provisions applicable to juveniles under Welfare and Institutions Code section 726 has been answered in In re Eric J. (1979) 25 Cal.3d 522 [ 159 Cal.Rptr. 317 , 601 P.2d 549 ].
Ex Post Facto
Appellant’s ex post facto argument concerning his forgery violation is sound. “‘An ex post facto law is one which, in its operation, makes that criminal or penal which was not so at the time the action
Paragraph 3 of Welfare and Institutions Code section 726 became effective on October 1, 1977. Dennis’ actions which gave rise to the forgery petition occurred on September 8, 1977. It is thus apparent that application of the amendment to appellant would violate the ex post facto prohibition because it would inflict greater punishment than would have been inflicted under the statute at the time the crime was committed. The amendment increases appellant’s punishment from two to three years confinement without the benefit of a hearing regarding aggravation to which he would have been entitled under section 726 before it was amended.[1]
We decline to follow the reasoning of In re John W. (1978) 81 Cal.App.3d 994 , 997 [ 146 Cal.Rptr. 826 ] (citing Bd. of Soc. Welfare v. County of L.A. (1945) 27 Cal.2d 90 , 96-97 [ 162 P.2d 635 ]) which holds that the definition of the phrase “maximum term of imprisonment” contained in the October 1, 1977, amendment to section 726 was merely “interpretive” of the preexisting language of the statute. Such reasoning ignores the realities of the amendment. As we have explained, before the amendment, appellant could have been confined for a maximum of two years on the forgery absent a hearing and finding of
1 Prior to October 1, 1977, section 726 provided that an order of wardship made pursuant to section 602 “shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense which brought the minor under the jurisdiction of the juvenile court.”. (Stats. 1976, ch. 1071, § 29.) California Rules of Court, rule 1373(b) which was in effect prior to October 1, 1977, also provided: “In the case of a felony offense, the maximum term of physical confinement shall be determined by procedures applicable to the sentencing of an adult to imprisonment.” The October 1, 1977, amendment to Welfare and Institutions Code section 726 defined “maximum term of imprisonment” as follows: “The longest of the three time periods set forth in paragraph (2) of subdivision (a) of section 1170 of the Penal Code, but without the need to follow the provisions of subdivision (b) of section 1170 of the Penal Code...” Section 726 was also amended to provide that if the court elects to aggregate the period of physical confinement on multiple counts, or multiple petitions, including previously sustained petitions adjudging the minor a ward under section 602, the “maximum term of imprisonment” shall be specified in accordance with subdivision (a) of section 1170.1 of the Penal Code.
In re John W.’s reliance on Bd. of Soc. Welfare v. County of L.A., supra, 27 Cal. 2d 90 also is misplaced. That case did not involve the interpretation of a criminal statute but rather a civil proceeding in mandamus to compel the county to return to recipients of old age benefits various sums of money which the county had reclaimed. The Supreme Court was faced with the construction of what it described as “somewhat ambiguous and uncertain language” of a prior section of the Welfare and Institutions Code (id., at p. 96). It was in the light of this ambiguity that the court declared the new statute should not be regarded as an amendment or enlargement of the prior rights but as interpretive of those rights.
In the present case, the amendment purporting to define the phrase “maximum term of imprisonment” does not clarify an ambiguity in the former statute; it alters the precise maximum punishment provided under the former statute to appellant’s detriment. Thus, absent a finding of aggravating circumstances, the court could not commit appellant beyond the two-year middle term on the forgery.
Double Punishment
Appellant’s double punishment argument must fail. Appellant correctly states that Penal Code section 654 is applicable to juvenile court proceedings (see Welf. & Inst. Code, § 726, par. 4; Pen. Code, § 1170.1, subd. (a)). Paragraph 4 of Welfare and Institutions Code section 726 took effect on October 1, 1977, overriding the prior rule that Penal Code section 654 was inapplicable to juveniles. However, appellant’s argument concerning double punishment pertains to his commitment for both the battery on and obstructing of an officer. These offenses which occurred on October 13, 1977, involved two different victims; the battery was against Officer Burrow and the obstruction was of Officer Ferguson as well as Officer Burrow. Section 654 is inapplicable to crimes perpetrated against different victims (Neal v. State of California (1960) 55 Cal.2d 11 , 20-21 [ 9 Cal.Rptr. 607 , 357 P.2d 839 ]; People v. Milan (1973) 9 Cal.3d 185 , 197 [ 107 Cal.Rptr. 68 , 507 P.2d 956 ]).
Appellant’s next contention is that the juvenile court erred by not declaring whether appellant’s battery and forgery offenses were felonies or misdemeanors. We agree.
Paragraph 2 of Welfare and Institutions Code section 702 provides: “If the minor is found to have committed an offense which would in the case of an adult be punished alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.” (Italics added; see also Cal. Rules of Court, rules 1355(f)(5) and 1373(a).) The word “shall” as used in this section is mandatory. (Welf. & Inst. Code, § 15; Cal. Rules of Court, rule 1302(b)(1).)
Both the battery and forgery convictions are punishable either as felonies or misdemeanors (Pen. Code, §§ 243, 473).
The Attorney General responds by citing the notation at page four of the clerk’s transcript that the juvenile court found the battery to be a felony. The People also argue that the failure to find that the forgery was a felony was cured by the court’s imposition of the maximum period of confinement for a felony for that offense—three years. Although the minute order does reflect that the juvenile court found the battery to be a felony, the transcript of the hearing does not support this notation. The court did not state at any of the hearings that it found the battery to be a felony. Although the court’s comments would seem to indicate that it was considering imposing an additional sentence for the battery over and above the maximum one year imposed for the resisting arrest, it did not explicitly find the battery to be a felony.
The contention that the court indirectly complied with the mandatory provisions of section 702 and the rules of court by committing appellant for the maximum term that can be imposed on the battery and forgery violations is not persuasive. As appellant has argued, it is entirely possible that the judge simply sentenced Dennis C. as a felon without considering the possibility of sentencing him as a misdemeanant. Because of this possible oversight, we have no alternative but to remand the matter to the juvenile court for clarification.
Finally, as the Attorney General has conceded, the juvenile court also erred in aggregating the period of appellant’s physical confinement by simply totalling the maximum terms for the three criminal viola
Accordingly, assuming the juvenile court on remand fixes the forgery and battery violations as felonies, appellant’s maximum term should be calculated as follows; violation of Penal Code section 243, battery on a police officer—three years; violation of Penal Code section 470, forgery, a felony—eight months (one-third of the two-year middle term); and violation of Penal Code section 148, resisting a peace officer, a misdemeanor—four months (one-third of the one year ordered) for a total of four years.
The dispositional order is reversed and the matter is remanded to the juvenile court for a new dispositional hearing in light of this opinion.
Brown (G. A.), P. J., and Andreen, J.,[2] concurred.
Respondent’s petition for a hearing by the Supreme Court was denied May 28, 1980.
* Assigned by the Chairperson of the Judicial Council.
Cases cited
- People v. Eric J. 25 Cal.3d 522 p. 20, p. 24
- Thompson v. Missouri 171 U.S. 380 at 383 p. 21
- People v. Benefield 67 Cal.App.3d 51 at 58 p. 21
- People v. John W. 81 Cal.App.3d 994 at 997 p. 21
- Board of Social Welfare v. County of Los Angeles 27 Cal.2d 90 at 96-97 p. 21, p. 22
- Neal v. State 55 Cal.2d 11 at 20-21 p. 22
- People v. Milan 9 Cal.3d 185 at 197 p. 22