In re M.L. (First Dist., Div.1): Simultaneous Crimes and W&I 733

M.L. robbed a couple at gunpoint, hopped in a car, and attempted to drive off with the loot.  He was captured after a brief police chase.  The state charged M.L. with, and M.L. admitted, committing robbery and illegal possession of a pistol.  The trial court judge sent M.L. off to DJF, California's Department of Juvenile Facilities (formerly the Department of Juvenile Justice, and formerly, formerly, the California Youth Authority).

On appeal M.L. argues that California Welfare and Institutions Code section 733 made him ineligible for a DJF commitment.  Section 733 states, in pertinent part, that a DJF commitment is prohibited  when a minor “has been or is adjudged a ward of the court pursuant to Section 602, and the most recent offense alleged in any petition and admitted or found to be true by the court is not described in subdivision (b) of Section 707.”

Robbery is described in section 707(b); illegal possession of a pistol is not described in 707(b).  So, if the "most recent offense" is the pistol, M.L. cannot be sent to the DJF.  But if the robbery is the "most recent offense", he can be sent to the DJF.  Which is it?

M.L. argues that it is the pistol since he still possessed the pistol after he had robbed the couple.  The opinion counters that actually M.L. must have possessed the pistol before the robbery.  But the possession continued until he was caught, M.L. says.  So did the robbery, because you never made it to a place of temporary safety, retorts the panel, affirming the DJF commitment.

Although the panel takes pains to not actually describe their reasoning, they find the crimes were committed at the same time.  Since both crimes were the most recent, it is correct to say either was the most recent and they choose the robbery.  It is a reasonable outcome, but the opinion is sloppy for two reasons.

First, if you are going to conduct a statutory analysis, pay attention to the words of the statute.  Section 733 concerns the most recent offense "alleged in any petition and admitted".  It is not the time of commission, rather the timing of the allegation and admission.  Second, the panel commits the most annoying of mid-level appellate court errors, using legislative history and other secondary materials to interpret a statute without first finding textual ambiguity.  A little cannonical discipline surely isn't too much to ask, is it?