In re Greg F.

*400 Opinion

This case involves the interplay between two statutes governing juvenile delinquency dispositions. Welfare and Institutions Code section 733, subdivision (c) (section 733(c)) 1 establishes a general rule that a ward cannot be committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF), unless “the most recent offense alleged in any petition and admitted or found to be true by the court” (italics added) is one of the violent offenses listed in section 707, subdivision (b) (section 707(b)). On the other hand, section 782 provides that the juvenile court has the power to dismiss any wardship petition if “the interests of justice and the welfare of the minor require such dismissal . . . .”

These two provisions may both come into play when a ward on probation for a DJF-eligible offense commits a new offense that is not listed in section 707(b). If the prosecution files a notice of a probation violation under section 777 (777 notice), the court has the power to revoke the ward’s probation and commit the ward to DJF. However, if the prosecution files a new section 602 petition (602 petition), the plain language of section 733(c)…

Despite the Legislature’s clear provision in Welfare and Institutions Code section 733, subdivision (c) (section 733(c)) 1 that a juvenile ward is ineligible for commitment to the “Department of Corrections and Rehabilitation, Division of Juvenile Facilities” (DJF) when the juvenile ward’s “most recent offense alleged in any petition and admitted or found to be true by the court” is not an offense listed in section 707, subdivision (b) (section 707(b)) or one of the sex offenses described in subdivision (c) of Penal Code section 290.008 (Penal Code section 290.008(c)), the majority concludes that a juvenile court retains the discretion to commit such a juvenile ward to the DJF by using its authority under section 782 to dismiss the most recently sustained petition and reach back to the last sustained petition if the minor is DJF eligible under such petition. (§ 731, subd. (a)(4).) I cannot agree. The majority’s construction of the statutes does not properly harmonize them. It renders section 733(c) ineffective and essentially meaningless. I, therefore, dissent.

It has long been and continues to be the law that when a minor is before the juvenile court for disposition based on a…

I. BACKGROUND

A. September 2008 Assault on Joseph C. On September 16, 2008, 11-year-old Joseph C. was riding his bicycle in Santa Rosa when a car stopped next to him. The minor, Greg F., and two other boys jumped out, yelling Norteño gang slogans and displaying gang hand signs. The minor hit Joseph on the head with a baseball bat, knocking him off his bicycle. The minor tried to take the bicycle, but Joseph clung to it. Joseph was airlifted to the hospital and underwent surgery. He was hospitalized for seven days and suffered lingering neurological damage. The ensuing 602 petition alleged the minor had committed assault with a deadly weapon and by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), had personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)), and had acted for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(C)). The minor admitted each of the allegations, and the petition was sustained. Because “[a]ssault by any means of force likely to

2 produce great bodily injury” is one of the offenses listed in section 707(b), the minor was eligible for a DJF commitment. (§ 707, subd. (b)(14); see…