THE PEOPLE, Plaintiff and Appellant, v. ROBERT VONROSKI DAVIS, Defendant and Respondent, 15 Cal. 4th 1096

Opinion BROWN, J. We granted review in this case to consider (1) whether for a prior juvenile adjudication to qualify as a “strike,” the juvenile court must have expressly found the juvenile “to be a fit and proper subject to be dealt with under the juvenile court law” (Pen. Code, § 667, subd. (d)(3)(C)), and (2) whether a prior juvenile adjudication for residential burglary qualifies as a “strike” (§ 667, subd. (d)(3)).

We conclude that no express finding of fitness is required, and that under the circumstances of this case we need not reach the issue of whether a prior juvenile adjudication for residential burglary qualifies as a “strike.” Accordingly, we affirm the judgment of the Court of Appeal. I.

Facts and Procedural Background By information filed on June 8, 1994, the Contra Costa County District Attorney charged defendant Robert Vonroski Davis (defendant) with one count of murder (§ 187), and one count of attempted murder (§§ 187, 664) with allegations as to both counts that he personally used a handgun (§ 12022.5, subd. (a)). In addition, three prior convictions were alleged under

section 667, subdivisions (b)-(i) (the legislative version of the three strikes law): a 1990 juvenile adjudication of felony assault (§ 245); a 1991 juvenile adjudication of residential burglary (§ 459, former § 460.1 [now § 460, subd. (a)]); and a 1993 adult robbery conviction (§ 211). Defendant pled not guilty and denied the prior conviction allegations. Defendant subsequently moved to strike the two prior juvenile adjudications in part on the ground that they did not satisfy the terms of

section 667, subdivision (d)(3). The trial court granted the motion. The People appealed. While the appeal was pending, a jury convicted defendant of murder and attempted murder. The prior robbery conviction allegation was found true. Defendant was sentenced to 35 years to life with a consecutive term of life plus 5 years. The Court of Appeal affirmed the trial court’s order striking the prior juvenile adjudication for residential burglary and reversed the trial court’s order striking the prior juvenile adjudication for felony assault.

On that same day, the court affirmed in a separate opinion defendant’s convictions for murder and attempted murder. We granted both the Attorney General’s and defendant’s petitions for review limited to the issues stated above, and subsequently designated the Attorney General petitioner for purposes of briefing and oral argument. II. Discussion “In March 1994, the Legislature enacted its version of the ‘Three Strikes and You’re Out’ law by amending

section 667. In general, the legislation provides longer sentences for certain prior serious or violent felonies popularly denoted ‘strikes.’ A ‘two strike’ case involves one prior qualifying felony; a ‘three strike’ case involves two or more prior qualifying felonies. Predicate prior felonies are defined in

section 667, subdivision (d), as: ‘

(1) Any offense defined in subdivision (

c) of

Section 667.5 as a violent felony or any offense defined in subdivision (

c) of

Section 1192.7 as a serious felony in this state’; ‘

(2) A conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison [and] . . . includes all of the elements of the particular felony as defined in subdivision (

c) of

Section 667.5 or subdivision (

c) of

Section 1192.7’; and ‘(3) [Certain] prior juvenile adjudication^].’ ” (People v. Hazelton (1996) 14 Cal.4th 101, 104 [58 Cal.Rptr.2d 443, 926 P.2d 423].) The statute’s unambiguous purpose is to provide greater punishment for recidivists. (§ 667, subd. (b).)

Section 667, subdivision (d)(3), lists the requirements for a prior juvenile adjudication to qualify as a “strike.” It provides: “[(d)]

(3) A prior juvenile adjudication shall constitute a prior felony conviction for purposes of sentence enhancement if: “(

A) The juvenile was 16 years of age or older at the time he or she committed the prior offense. “(

B) The prior offense is listed in subdivision (

b) of

Section 707 of the Welfare and Institutions Code or described in paragraph (1) [California prior serious or violent felony convictions] or (2) [other jurisdiction prior serious or violent felony convictions] as a felony. “(

C) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law. “(

D) The juvenile was adjudged a ward of the juvenile court within the meaning of

Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (

b) of

Section 707 of the Welfare and Institutions Code.” Defendant contends that neither his prior juvenile adjudication for residential burglary nor for felony assault meets the requirements of

section 667, subdivision (d)(3)(C) (subdivision (d)(3)(C)), because there was no express finding of fitness. Defendant further contends that his prior juvenile adjudication for residential burglary does not meet the requirements of

section 667, subdivision (d)(3)(D), because that offense is not included in Welfare and Institutions Code

section 707, subdivision (b), as it existed on June 30, 1993 (former

section 707(b)). We first consider the meaning of subdivision (d)(3)(C)’s requirement that the juvenile was “found to be a fit and proper subject to be dealt with under the juvenile court law.” Defendant contends that an express finding of fitness is required; the Attorney General asserts that an implied finding is sufficient. We agree with the Attorney General. Under Welfare and Institutions Code

section 602, “Any person who is under the age of 18 years when he violates any law of this state or of the United States or any ordinance of any city or county of this state defining crime other than an ordinance establishing a curfew based solely on age, is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court.” A petition under this

section “is the equivalent of a complaint in the adult court.” (1 Cal. Juvenile Court Practice (Cont.Ed.Bar 1981) § 1.8, p. 22.) The prosecutor may, however, also file a petition under Welfare and Institutions Code

section 707 seeking a determination that the minor is unfit for treatment in the juvenile court system. (Welf. & Inst. Code, § 707, subds. (a), (c).) When the juvenile is charged with a crime falling within former

section 707(b), and a Welfare and Institutions Code

section 707 petition is filed, the minor is “presumed to be not a fit and proper subject to be dealt with under the juvenile court law unless the juvenile court concludes . . . that the minor would be amenable to the care, treatment, and training program available through the facilities of the juvenile court based upon an evaluation of” various criteria. (Welf. & Inst.

Code, § 707, subd. (c).) If the juvenile court makes a finding of fitness, it makes “[a] determination that the minor is a fit and proper subject to be dealt with under the juvenile court law . . . .” (Ibid.) Thus, the only circumstance under which an express finding of fitness occurs in juvenile court is when the prosecutor unsuccessfully seeks to have the juvenile tried in adult court.

Defendant therefore contends that the “use of this precise language which is only used within the context of a [section] 707 petition must have been intended as a requirement that there have been a fitness hearing and evaluation with supporting findings.” We disagree. An express finding of fitness is necessary in the context of a ruling on a Welfare and Institutions Code

section 707 petition based on a former

section 707(

b) offense because the minor is presumed to be unfit. (Welf. & Inst. Code, § 707, subd. (c).) Thus, the juvenile court must explain why the presumption of unfitness was rebutted in that particular case. Subdivision (d)(3)(C), however, refers neither to a Welfare and Institutions Code

section 707 petition nor to an express finding of fitness. Rather, it merely requires that the juvenile was “found to be a fit and proper subject to be dealt with under the juvenile court law.” This, of course, includes the situation where a Welfare and Institutions Code

section 707 petition based on a former

section 707(

b) offense was denied. It also reasonably includes the situation where the prosecutor does not file a Welfare and Institutions Code

section 707 petition. As the Court of Appeal recognized, “ [proceedings under

section 602 with the resulting adjudication of wardship and treatment of the minor under the jurisdiction of the juvenile court constituted an implied finding that the minor is a ‘fit and proper subject to be dealt with under the juvenile court law.’ ” By its terms, subdivision (d)(3)(

C) requires a finding, not an express finding, of fitness. Accordingly, nothing in the subdivision’s language precludes the inclusion of implied as well as express findings of fitness. Moreover, the suitability requirement helps distinguish those offenses committed by minors 16 or over that are adjudicated in juvenile court rather than as adult offenses. Indeed, if subdivision (d)(3)(

C) were construed to require an express finding of fitness, this would so severely limit those juvenile adjudications that would qualify as “strikes,” that such a result would seem to be at odds with the intent of

section 667, subdivisions (b)-(i). Finally, a conclusion that subdivision (d)(3)(

C) requires an express finding of fitness would evoke questions regarding the statute’s constitutional validity. The difference in punishment that two otherwise similarly situated defendants would receive would depend solely on an unsuccessful motion for a determination that the minor is unfit for treatment in the juvenile court system.

An express finding requirement would be analogous to a statute that set the punishment for a manslaughter conviction at five years if the prosecution originally charged the case as manslaughter, but ten years if the prosecution originally charged the case as murder and the defendant was convicted of the lesser charge of manslaughter. Such a statute would arguably be open to a variety of constitutional challenges such as equal protection, due process, and separation of powers. We see no basis for concluding that the Legislature made such an arguably irrational distinction here.

Defendant asserts that concluding an implied finding satisfies subdivision (d)(3)(

C) renders that subdivision superfluous. He essentially argues that subdivision (d)(3)(

C) would then apply to anyone tried in juvenile, as opposed to adult court, and subdivision (d)(3) already expressly applies to prior juvenile adjudications. However, the presence of some duplication in a multiprong statutory test does not automatically render it meaningless. Moreover, subdivision (d)(3) is arguably superfluous in part no matter how we interpret it.

If we interpret it, as defendant argues, to require an express finding of fitness, then the requirement that the juvenile was 16 years old at the time of committing the offense is redundant. (§ 667, subd. (d)(3)(A).) As the statute existed on the relevant date, June 30,1993 (§ 667, subd. (h)), only juveniles who were 16 years old at the time of committing the offense could be treated as adults, and thus there could only be an express fitness finding as to those juveniles. (Former Welf. & Inst.

Code, § 707, subd. (c); see also former § 707, subd. (a).) Thus, merely discerning that parts of the statute are repetitive does little to inform our analysis of its content. For the reasons set forth above, we conclude the more reasonable

interpretation is that an implied finding of fitness satisfies subdivision (d)(3)(C). The trial court therefore erred in striking defendant’s prior juvenile adjudications for felony assault and residential burglary on this ground. Given our conclusion on this issue, defendant has at least two “strikes,” i.e., a 1990 juvenile adjudication of felony assault, and a 1993 adult robbery conviction. He thus already qualifies for the harsher punishment prescriptions of the three strikes statute.

We decline under these circumstances to decide whether defendant’s juvenile adjudication for residential burglary also counts as a “strike.” We therefore leave this issue for another day. Conclusion The judgment of the Court of Appeal is affirmed. George, C. J., Baxter, J., and Chin, J., concurred. All further statutory references are to the Penal Code unless otherwise indicated.

Section 1170.12, subdivision (b)(3), the November 1994 initiative version of the three strikes law, contains a virtually identical provision. All references to statutes in the three strikes law are to “statutes as they existed on June 30, 1993.” (§ 667, subd. (h).)