Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of San Diego County, Theodore K. Weathers, Judge, Super. Ct. No. J212753
AARON, J.
Seth R. entered a negotiated admission to three counts of assault with a deadly weapon (Pen. Code, § 245, subd.(a)(1)), three allegations that these were hate crimes (Pen. Code, § 422.75, subd. (b)), and one allegation that he personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)). The juvenile court adjudged Seth a ward of the court. (Welf. & Inst. Code, § 602.) Seth appeals the court's dispositional order committing him to the California Department of Corrections and Rehabilitation Juvenile Justice Division (JJD)─formerly, the California Youth Authority (CYA)─for 10 years. Seth contends that the court did not comply with the terms of the plea bargain.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTS AND PROCEDURAL BACKGROUND
On July 29, 2006, the Gay Pride Festival took place in Balboa Park. That evening, Seth, then 15 years old, and two adults went to Balboa Park to rob random victims. One of the adults brought a baseball bat. Once the trio arrived at the park, they abandoned their robbery plan and started attacking Black, Mexican and gay people they encountered. The first victim was hit in the back with the baseball bat and ran away. The second victim was hit with the bat on the head and upper body at least a dozen times, and was also kicked and punched. The third victim was struck in the head repeatedly. When the first victim returned to help the other victims, he was hit on the head with the bat five times and fell to the ground; Seth kicked him repeatedly in the head. The fourth victim, who tried to come to the aid of the others, was stabbed twice. The fifth and sixth victims were punched and kicked. Throughout these attacks, the perpetrators called the victims "fags" and "faggots." Three of the victims were hospitalized; one was placed in the surgical intensive care unit for multiple head wounds. Every bone in this victim's face was broken, and medical personnel had to perform a tracheotomy in the emergency room to prevent him from drowning in his own blood. Seth's role was largely as a lookout, but he also admitted to kicking and punching the victims.
On September 18, Seth entered admissions to three counts of assault with a deadly weapon and to the hate crime allegations on those counts, and a great bodily injury allegation on one of the counts. The court granted the prosecution's request to dismiss the remaining counts and the allegations under section 707.
On October 4, the court committed Seth to the JJD for a maximum term of 10 years. At the same time, the court found that "the ward has committed a Welfare [and] Institutions Code [section] 707(b) offense."
DISCUSSION
Seth contends that he did not receive the benefit of his plea bargain─namely, that the section 707 allegations in the petition would be dismissed─when the juvenile court, at the disposition hearing, found that he had committed a section 707, subdivision (b) offense. This contention is without merit.
Seth has misconstrued the import of section 707, subdivision (b). Section 707 renders a minor presumptively unfit for juvenile court if he or she committed one of the offenses set forth in section 707, subdivision (b). "The determination of fitness or unfitness for the juvenile court is the primary purpose of section 707." (In re Veronique P. (2004) 119 Cal.App.4th 195, 199.) Section 707, subdivision (b) sets forth the offenses that, pursuant to section 707, subdivision (c), render a minor presumptively unfit for juvenile court if committed when the minor was 14 years of age or older. If a minor is found to be an unfit subject to be dealt with under the juvenile court law, the pending petition is transferred to the court of criminal jurisdiction and the minor is tried as an adult. (§ 707.01, subd. (a)(3).)
The parties do not dispute that assault with a deadly weapon is a section 707, subdivision (b) offense. (See In re Pedro C. (1989) 215 Cal.App.3d 174, 182; § 707, subd. (b)(14).)
Here, the court followed the terms of the plea bargain by granting the prosecution's motion to dismiss the section 707 allegations. Accordingly, the issue of Seth's fitness to be tried in juvenile court was settled in Seth's favor; he remained under the jurisdiction of the juvenile court, and his case was not transferred to a court of criminal jurisdiction.
However, section 707, subdivision (b) serves other purposes as well as the fitness determination. The list of offenses in section 707, subdivision (b) is referenced in various sections of the Welfare and Institutions Code as well as in the Penal Code. Section 607, subdivision (b) provides that the juvenile court may retain jurisdiction over a ward who is committed to the CYA until he or she is 25 years old, if the wardship was based on a section 707, subdivision (b) offense. This is significant because, generally, the CYA must discharge a ward either after two years or upon the ward's 21st birthday, whichever occurs later. (§ 1769, subd. (a).) However, if the committing offense is one listed in section 707, subdivision (b), the CYA may maintain control over the ward until he or she attains 25 years of age. (§ 1769, subd. (b).) The reference in section 1769, subdivision (b) to the offenses in section 707, subdivision (b) is intended "to designate the offenses that trigger extended commitments." (In re Tino V. (2002) 101 Cal.App.4th 510, 513.)
The list of statutes referencing section 707, subdivision (b) include sections 607, 653.5, 654.3, 727, 790, 827.2, 828.1, 1732.6, 1767.1, and 1769. Section 707, subdivision (b) is also referred to in Penal Code section 667, subdivision (d)(3). (See In re Veronica P., supra, 119 Cal.App.4th at p. 201, fn. 4.) We note that in Seth's case, the finding that he committed a section 707, subdivision (b) offense will not have significance under the Three Strikes Law. A violation of assault with a deadly weapon does not qualify as a strike unless the prosecution shows that the defendant personally used a firearm or a dangerous weapon in committing the offense. (People v. Leng (1999) 71 Cal.App.4th 1, 9.) Thus, the juvenile court's finding that Seth's violation of Penal Code section 245, subdivision (a)(1) is a section 707, subdivision (b) offense does not, by itself, without additional proof by the prosecution, make Seth's violation a strike.
Section 1769, subdivision (b) provides: "Every person committed to the Department of the Youth Authority by a juvenile court who has been found to be a person described in Section 602 by reason of the violation of any of the offenses listed in subdivision (b), paragraph (2) of subdivision (d), or subdivision (e) of Section 707, shall be discharged upon the expiration of a two-year period of control or when the person reaches his or her 25th birthday, whichever occurs later, unless an order for further detention has been made by the committing court pursuant to Article 6 (commencing with Section 1800)."
During the disposition hearing, the court indicated that Seth should spend "the maximum amount of time" in the JJD to allow the institution to have the most time "to work with this minor" within the juvenile law. Accordingly, the court set the maximum time of commitment in the JJD at 10 years, when Seth would be 25 years old.
The court's finding that Seth had committed a section 707, subdivision (b) offense was a prerequisite to (1) extending the court's jurisdiction until Seth reached his 25th birthday (§ 607, subd. (b)), and (2) extending Seth's commitment to the JJD until his 25th birthday (§ 1769, subd. (b); Cal. Rules of Court, rule 5.805). The finding was not a violation of the plea bargain, the focus of which was keeping the case in the juvenile court.
DISPOSITION
The order is affirmed.
WE CONCUR: McCONNELL, P. J., O'ROURKE, J.