A Juvenile Strike May Prevent Serving Time in County Jail
AB109 has been in effect for about eighteen months now (as of April 2013) and it is widely understood that “clean up” legislation is needed to address a few gaps that various cases have revealed.About This Article Briefly: If one has a prior adjudication in juvenile court for a strike offense and one commits a new offense that is a violent offense, that person will not be eligible for being housed in county jail under AB109.
For example, California’s Three Strike Law (Penal Code § 667, et seq.) and AB109 seem to conflict in how each act treats prior serious or violent felonies that stem from a juvenile conviction.
While serving time at the CYA, he hit a correctional officer about five months after he turned 18. The hit left a three-inch cut on the officer’s face. He was then charged with felony battery with injury on a peace officer (Penal Code § 243(c)(2)) and felony resisting arrest (Penal Code § 69). The court, in sentencing Delgado, struck his strike for arson and imposed a three year sentence, doubled for the robbery strike.
The trial judge denied Delgado’s request to serve his sentence in county jail. In denying the request, the trial judge noted that the Three Strikes Law controlled, requiring the sentence to be served in state prison. Furthermore, the court reasoned that the Three Strikes Law could only be amended, according to its provisions, by a two-thirds “supermajority vote” by the state legislature, which did not happen. In other words, a prior juvenile strike “counted” as an adult strike under California law for purpose of deciding whether the sentence was to be served in county jail or state prison.
Moreover, the Second Appellate District curiously pointed out that in reviewing the legislature history of AB109, an earlier draft of the act explicitly stated that felons whose prior strikes included juvenile convictions were to go to state prison. The final version of the act, however, omitted this provision.
In noting this, the appellate court went so far as to cite Central Delta Water Agency v. State Water Resources Control Board (1993) 17 Cal. App. 4th 621, 634, which held:
“When the Legislature choses to omit a provision from the final version of a statute which was included in an earlier provision, this is strong evidence that the act as adopted should not be constructed to incorporate the original provision.”
Nevertheless, the appellate court concluded, the Legislature had no power to amend the Three Strikes Law without voter approval or a two-thirds vote of the Legislature, so technically, the intention of AB109 perhaps really did not matter. The Second Appellate Court therefore affirmed the trial court in Ventura and confirmed the state prison sentence, noting that Delgado’s prior crime was violent and his present one, striking a police officer, was also violent. Moreover, Delgado had a lengthy criminal history for other offenses, too, including drug possession and sales.
We think this is a bad opinion because often a youth will commit some offense while immature and impulsive (so there are mitigating circumstances and the juvenile may have matured since then), but are reminded that until further legislation is approved, this is how our law works.
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