People v. Jose Z.

Opinion

The 2000 voter initiative known as Proposition 36 requires courts to place those convicted of nonviolent drug possession offenses on probation and in drug treatment programs and prohibits them from incarcerating these offenders. (Pen. Code, §§ 1210, 1210.1.) In this appeal, we address whether the juvenile court’s failure to apply Proposition 36 to a minor violated the equal protection clauses of the Fourteenth Amendment to the United States Constitution or article I, section 7 of the California Constitution. We conclude that it did not because minors adjudged in violation of nonviolent drug possession offenses are not similarly situated to adults convicted of these offenses with respect to the legitimate purposes of the law. We also hold that the trial court properly stated the maximum term of confinement to be one year and four months under Welfare and Institutions Code section 726, subdivision (c). In the unpublished portion of this opinion, we determine that the trial court properly denied the minor’s motion to suppress evidence.

PROCEDURAL HISTORY

On January 27, 2003, the People filed a juvenile wardship petition alleging that appellant Jose Z. (the minor) committed a misdemeanor violation of Health and Safety Code section 11550, subdivision (a), being under the influence of methamphetamine. The minor filed a motion based on the Fourth Amendment to suppress the evidence, which was denied. Subsequently, the minor admitted the allegations in the petition. While advising the minor of the consequences of his waiver of his right to a trial, the court stated that the maximum period of incarceration, if any, would be one year for the drug offense plus four months for a misdemeanor battery he had committed in 2001 and for which he had been on probation when he committed the drug offense.

The court conducted a disposition hearing on April 1, 2003. Observing that the minor had previously been adjudged a ward of the court (for the battery),

The minor appeals from the denial of the motion to suppress and the disposition imposed.

FACTUAL HISTORY

A. The battery

On December 11, 2001, the minor, then age 15, joined with two other students at Liberty Middle School in attacking and beating Robert Y., another student. Later the same day, the three attackers and the victim were together in a program known as Opportunity Class. When the teacher briefly left the classroom, the three again attacked Robert. Robert’s mother called the police, and Robert reported to the responding officer that the three attackers said they beat him because he had to be “jumped into” Opportunity Class. The police officer observed bruises on Robert’s back, abdomen, and shoulders. When the officer contacted the minor, the minor admitted he had participated in the attacks.

On February 8, 2002, the People filed a juvenile wardship petition based on these facts. The petition alleged a violation of Penal Code section 243.2, subdivision (a), battery on school property. The probation report revealed that the minor was arrested twice before for the same offense, on May 29, 2000 and May 3, 2001. The first incident was disposed of with a warning; for the second, the minor served 16 hours in a work program. At a court appearance on March 12, 2002, the minor admitted the allegations in the petition. In addition, the probation report reflected that the minor admitted he occasionally used alcohol and marijuana and had associates and relatives who were Sureños gang members. He denied he was a member himself.

At the disposition hearing on April 22, 2002, the juvenile court adjudged the minor a ward and ordered him to serve 90 days in the Kings County Alpha Boot Camp Program. He served 79 days and was released on July 21, 2002. The minor remained on probation after his release, the court having placed him under the probation department’s supervision, with a one-year review set for April 22, 2003.

B. The drug offense

At 1:00 o’clock in the morning on October 20, 2002, three months after his release from boot camp, the minor was riding in a pickup truck with three

As noted above, the wardship petition on the drag charge was filed on January 27, 2003. On March 26, 2003, the minor was cited a fourth time for fighting on school grounds. He was also seen waving a blue bandanna in front of his school. Blue is the color of the Surenos gang.

DISCUSSION

Proposition 36

added sections 1210, 1210.1, and 3063.1 to the Penal Code. (Prop. 36, approved Nov. 7, 2000, eff. July 1, 2001.) Section 1210.1, subdivision (a), of the Penal Code provides: “Notwithstanding any other provision of law, and except as provided in subdivision (b), any person convicted of a nonviolent drag possession offense shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program .... A court may not impose incarceration as an additional condition of probation.” The term “nonviolent drug possession offense” includes the offense the minor was found to have committed, being under the influence of a controlled substance in violation of Health and Safety Code section 11550. (Pen. Code, § 1210, subd. (a).)

As can be seen, the statutory language only refers to those convicted, not those found to be offenders by a juvenile court, and the court did not apply Proposition 36 to the minor. The minor argues that the equal protection clause of the Fourteenth Amendment to the United States Constitution, and article I, section 7 of the California Constitution, require juvenile courts to apply Proposition 36 to minors found to have committed offenses within its scope. As a result, he concludes the court could not properly commit him to boot camp. On the other hand, the People argue that minors found in violation and adults convicted are not similarly situated for purposes of equal protection

The argument is unconvincing for two reasons. First, we cannot determine from the record whether any portion of the minor’s 150-day-to-one-year boot camp commitment was for the underlying offense of battery. On the contrary, the transcript of the disposition hearing tends to indicate that the commitment was only for the drug offense since the battery is not mentioned at all. Consequently, we cannot conclude that the minor was committed for an offense outside the scope of Proposition 36.

Second, even if we reached this conclusion, we could not say the commitment for that offense would make the minor unavailable for a Proposition 36 treatment program because he was committed to a juvenile facility, not a jail or prison. The statute provides that eligible drug treatment programs “[do] not include drug treatment programs offered in a prison or jail facility,” but it does not exclude programs at juvenile facilities. (Pen. Code, § 1210, subd. (b).) Thus, neither of the reasons for declining to apply Proposition 36 that the court relied on in Esparza applies here. As a result, we proceed to consider the constitutional issue.

The right to equal protection of the laws is guaranteed by the Fourteenth Amendment to the United States Constitution and by article I, section 7 of the California Constitution. The federal and state provisions are analyzed in essentially the same manner. (In re Demergian (1989) 48 Cal.3d 284 , 291-292 [ 256 Cal.Rptr. 392 , 768 P.2d 1069 ]; People v. Leng (1999) 71 Cal.App.4th 1 , 11 [ 83 Cal.Rptr.2d 433 ].) The right “is essentially a direction that all persons similarly situated should be treated alike” by state actors. (Cleburne v. Cleburne Living Center, Inc. (1985) 473 U.S. 432 , 439 [ 87 L.Ed.2d 313 , 105 S.Ct. 3249 ].)

In the first stage of an equal protection analysis, we determine whether the state has adopted a classification that affects similarly situated groups of people in an unequal manner. (People v. Massie (1998) 19 Cal.4th 550 , 571 [ 79 Cal.Rptr.2d 816 , 967 P.2d 29 ].) The analysis will not proceed beyond this stage if the groups at issue are not “ ‘similarly situated with respect to the legitimate purpose of the law,’ ” or if they are similarly situated, but receive “ ‘like treatment.’ ” Identical treatment is not required. (Darces v. Woods (1984) 35 Cal.3d 871 , 885 [ 201 Cal.Rptr. 807 , 679 P.2d 458 ]; People v. Hubbart (2001) 88 Cal.App.4th 1202 , 1216-1217 [ 106 Cal.Rptr.2d 490 ].)

The differing liberty interests the court described in Eric J. correspond to different needs of minors and adults, and these in turn relate to different means of rehabilitation provided by the law. Proposition 36 drug treatment programs include “outpatient treatment, half-way house treatment, narcotic replacement therapy, drug education or prevention courses and/or limited inpatient or residential drug treatment as needed to address special detoxification or relapse situations or severe dependence.” (Pen. Code, § 1210, subd. (b).) These resources are considerable, but their rehabilitative purpose is different from that of the resources of the juvenile system. The juvenile court law provides, in part, regarding its purposes: “The purpose of this chapter is to provide for the protection and safety of the public and each minor under the jurisdiction of the juvenile court and to preserve and strengthen the minor’s family ties whenever possible, removing the minor from the custody of his or her parents only when necessary for his or her welfare or for the safety and protection of the public. . . . When the minor is removed from his or her own family, it is the purpose of this chapter to secure for the minor custody, care, and discipline as nearly as possible equivalent to that which should have been given by his or her parents. This chapter shall be liberally construed to carry out these purposes.” (Welf. & Inst. Code, § 202, subd. (a), italics added.) The state’s ability to exercise the same power as a parent to limit the liberty of a minor who becomes a ward of the court is consistent with the state’s responsibility to provide “custody, care and discipline” like that which should have been provided by the minor’s parents. Equal protection principles do not prevent the state from taking on, with respect to minors, responsibilities that it does not have for adults. For example, the federal and state constitutions do not forbid the state to “secure for [a] minor custody, care and discipline as nearly as possible equivalent to that which should have been given by his or her parents.” (Ibid.) This is especially true where, as here, the court finds that the custody, care and discipline will involve confinement—even though an adult would not be incarcerated for similar conduct.

In sum, the needs of adult and minor drug offenders are not the same. Quoting Justice Frankfurter, the California Supreme Court has observed that “ ‘[t]he Constitution does not require things which are different in fact... to

As noted earlier, the court stated in its commitment order that the maximum term of confinement would be one year and four months. The court’s comments at the time the minor admitted the allegations in the petition indicate that one year was for the drug offense and four months was for the battery:

“THE COURT: Okay. It’s one year on this offense [the drug offense, violation of Health and Safety Code section 11550]. It looks like he had a misdemeanor battery too, a 243.2 in April of 2000. [][]... [][] In that case, it looks like it was a one-year misdemeanor.

“[The Deputy District Attorney]: That would be a one-year misdemeanor if he was convicted, so that would add four months.”

The addition of four months for the battery was pursuant to Penal Code section 1170.1, which provides that a felony sentence ordered to run consecutively to another sentence shall be one-third of the middle term imposed for the offense. This squares with the holding in In re Eric J., supra, 25 Cal.3d at page 537, that avoidance of absurd results requires a similar sentencing scheme for felonies and misdemeanors. Consequently, since the maximum sentence for a violation of Penal Code section 243.2 is one year, the maximum consecutive term for this offense would be one-third of that period, or four months.

The court included the maximum term of confinement in its order pursuant to subdivision (c) of section 726 of the Welfare and Institutions Code, which provided:

“In any case in which the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to [Welfare and Institutions Code] Section 602, the order 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

“If the charged offense is a misdemeanor or a felony not included within the scope of Section 1170 of the Penal Code, the ‘maximum term of imprisonment’ is the longest term of imprisonment prescribed by law.”

The minor argues that the court erred in two respects by ordering a maximum confinement time of one year and four months. First, he contends that, because an adult convicted of the same offenses would not, under Proposition 36, have received any time for the drug charge, the inclusion of time in his case violated equal protection principles. We reject this argument because, as explained earlier, there was no equal protection violation since the minor was differently situated from an adult convicted of the same nonviolent drug possession offense.

Second, the minor takes the position that the stated maximum confinement time of one year and four months violated the plain language of Welfare and Institutions Code section 726, subdivision (c): “[T]he order 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 or offenses . . . .” The minor argues that under Proposition 36, an adult convicted of violating Health and Safety Code section 11550 would not receive additional time. As a result, he reasons that, under Welfare and Institutions Code section 726, he should not either.

We disagree. The foundational premise upon which the minor builds his argument is faulty since it is not true that under Proposition 36 the maximum term of incarceration for an adult violator of Health and Safety Code section 11550 is zero. On the contrary, the sentence must be “not less than 90 days or more than one year in a county jail.” (Health & Saf. Code, § 11550, subd. (a).) Under some circumstances, the diversion provisions of Proposition 36 do not apply: for example, the defendant was previously convicted of a violent felony (Pen. Code, § 1210.1, subd. (b)(1)); the defendant was convicted of a non-drug-related offense and a nonviolent drug possession offense in the same proceeding (Pen. Code, § 1210.1, subd. (b)(2)); the defendant used a firearm while committing certain drug offenses (Pen. Code, § 1210.1, subd. (b)(3)); the defendant refuses drug treatment (Pen. Code, § 1210.1, subd. (b)(4)); or the defendant is found to be unamenable to drug treatment (Pen. Code, § 1210.1, subd. (b)(5)). Under other circumstances

Since a term of up to one year remains available under Proposition 36 for a violation of Health and Safety Code section 11550, we interpret Welfare and Institutions Code section 726 as allowing a one-year maximum period of confinement. For misdemeanors and felonies not included within Penal Code section 1170, Welfare and Institutions Code section 726 provides that “the ‘maximum term of imprisonment’ is the longest term of imprisonment prescribed by law.” (Welf. & Inst. Code, § 726, subd. (c).) Here, the law simply states that the longest term prescribed for the offense is to be set forth in the juvenile court’s order as the maximum term of confinement. The longest term for a violation of Health and Safety Code section 11550 is one year. Thus, the plain language of the statute supports the court’s action. “If there is no ambiguity in the language” of a statute we undertake to interpret, then “we presume the Legislature meant what it said, and the plain meaning of the statute governs.” (Hunt v. Superior Court (1999) 21 Cal.4th 984 , 1000 [ 90 Cal.Rptr.2d 236 , 987 P.2d 705 ].)

In an abundance of caution, we observe that even if Welfare and Institutions Code section 726 was ambiguous, we would still reach the same conclusion. “[W]e consider portions of a statute in the context of the entire statute and statutory scheme of which it is a part, giving significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose.” (Curle v. Superior Court (2001) 24 Cal.4th 1057 , 1063 [ 103 Cal.Rptr.2d 751 , 16 P.3d 166 ].) Courts “should construe every statute with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.” (Clean Air Constituency v. California State Air Resources Bd. (1974) 11 Cal.3d 801 , 814 [ 114 Cal.Rptr. 577 , 523 P.2d 617 ].)

Section 726 also contains a provision defining “maximum term of imprisonment” for felonies within the scope of the sentencing provisions of Penal Code section 1170: “ ‘[M]aximum term of imprisonment’ means the longest of the three time periods set forth in paragraph [3] of subdivision (a) of

The judgment is affirmed.

Dibiaso, Acting P. J., and Gomes, J., concurred.

Appellant’s petition for review by the Supreme Court was denied June 9, 2004.