A Juvenile Strike May Prevent Serving Time in County Jail

Assembly Bill 109 (“AB 109”) is widely perceived as a good thing for defendants facing charges that ten years ago would present prison sentences and being sent far away to some prison 500 miles away or even in another state.  Under AB109, felons convicted of nonviolent and nonserious crimes, without serious or violent felony convictions in their past, are eligible to serve their sentence instead in the local county jail.  Other restrictions also apply to be eligible for “county time,” but it is in general, welcome relief for our clients who fear prison.  It is set forth at Penal Code § 1170(h).
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.
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.

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.

The case of People v. Arturo Delgado (2013 DJDAR 2419) brought this conflict center stage.  The case arose out of Ventura County.  Delgado had a prior juvenile record after age sixteen for arson and robbery, which each qualify as a serious or violent felony.  He was then committed to the California Youth Authority (“CYA”).

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.

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Delgado then appealed the trial court in People v. Delgado (2013 DJDAR 2419) (and later cited at People v. Delgado (2013) 214 Cal.App.4th 914).  The Second Appellate Court conceded that the Three Strikes Law was silent about juvenile convictions for serious or violent felonies barring a county jail sentence, and that AB109 also was silent as to the effect of juvenile convictions.

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.

For more information about issues involving county jail and state prison commitments, click on the following articles:
  1. Juvenile’s Sentence of 254 Years for Four Non-Homicide, Sex Crimes Set Aside
  2. Underage DUI Is Not Similar to a Juvenile Offense for Sentencing in a Later Drug Case
  3. Life in Prison without Possibility of Parole Is Unconstitutional for Juvenile Non-homicide Offender
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