In Re Casey G. ( 2010 )

FILED BY CLERK
IN THE COURT OF APPEALS FEB 24 2010
STATE OF ARIZONA
DIVISION TWO COURT OF APPEALS
DIVISION TWO
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) 2 CA-JV 2009-0109
IN RE CASEY G. ) DEPARTMENT B
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) OPINION
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APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. 191354-01
Honorable Sarah R. Simmons, Judge
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
Barbara LaWall, Pima County Attorney Tucson
By Dale Cardy Attorneys for State
Robert J. Hirsh, Pima County Public Defender Tucson
By Susan C. L. Kelly Attorneys for Minor
B R A M M E R, Judge.
¶1 Pursuant to a plea agreement, the minor appellant, Casey G., was
adjudicated delinquent after admitting a charge of sexual conduct with a minor under
fifteen, a class two felony committed in violation of A.R.S. § 13-1405. The delinquency
petition alleged the offense was a dangerous crime against children.1 Between the time
of his adjudication and disposition hearings, Casey moved to strike the dangerous-crime-
against-children allegation. The juvenile court denied the motion and, at disposition,
ordered Casey placed on juvenile intensive probation supervision for a minimum of
eighteen months. The sole issue raised on appeal is whether the juvenile court erred in
refusing to strike the allegation that Casey’s offense was a dangerous crime against
children as that term is defined in A.R.S. § 13-705(P)(1)(e). The proper interpretation of
§ 13-705 is a pure question of law, which we review de novo. See State v. Sepahi, 206
Ariz. 321, ¶ 2, 78 P.3d 732, 732 (2003); In re Reymundo F., 217 Ariz. 588, ¶ 5, 177 P.3d
330, 332 (App. 2008).
¶2 In interpreting a statute, our goal is to ascertain and give effect to the
legislative intent behind the statute. Mejak v. Granville, 212 Ariz. 555, ¶ 8, 136 P.3d
874, 876 (2006). The best indicator of that intent is the language of the statute itself. Id.;
In re Jessi W., 214 Ariz. 334, ¶ 15, 152 P.3d 1217, 1220 (App. 2007). “When the
language of the statute is clear and unambiguous, this Court need go no further to
ascertain the legislative intent.” Mejak, 212 Ariz. 555, ¶ 8, 136 P.3d at 876. Because the
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The delinquency petition, filed on July 7, 2009, did not allege § 13-705 among
the list of statutes Casey was charged with violating. Although it cited A.R.S.
§ 13-604.01, the predecessor to § 13-705, § 13-604.01 was repealed, 2008 Ariz. Sess.
Laws, ch. 301, § 18, effective “from and after December 31, 2008.” Id. § 120.
Simultaneously, its substantive provisions were transferred to and renumbered as
§ 13-705. 2008 Ariz. Sess. Laws, ch. 301, §§ 17(A), 119, 120. Casey has not raised this
issue, either below or on appeal, and we do not address it.
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language of § 13-705 is clear and unambiguous, we conclude the juvenile court erred as a
matter of law.
¶3 Section 13-705 prescribes enhanced prison sentences in the adult context
for persons convicted of dangerous crimes against children. A “[d]angerous crime
against children” is defined in § 13-705(P)(1), as any of a list of offenses enumerated in
subsections (a) through (u) of that section, when those particular crimes are “committed
against a minor . . . under fifteen years of age”—as Casey’s victim was in this case.
However, by the statute’s own terms, the dangerous-crimes-against-children designation
exists only “[f]or the purposes of” § 13-705. § 13-705(P). It thus applies only to enhance
the sentences of “person[s] who [are] at least eighteen years of age or who ha[ve] been
tried as an adult and who [are] convicted of a dangerous crime against children.”
§ 13-705(B), (C)-(F), (J); see also § 13-705(A) (“person who is at least eighteen years of
age and who is convicted of a dangerous crime against children”).
¶4 There is no dispute that Casey is younger than eighteen and was not tried as
an adult, and the state acknowledges he therefore is not currently susceptible to the
operation of § 13-705. But it contends that classifying the present offense as a dangerous
crime against children would allow the offense to serve “as a predicate felony” in the
event Casey subsequently should commit “an eligible offense after his eighteenth
birthday.” See § 13-705(P)(2) (defining predicate felony).
¶5 The state is mistaken, however, because all applicable subsections of
§ 13-705 that refer to a “predicate felony” or felonies require the person whose sentence
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is being enhanced under § 13-705 “ha[ve] been previously convicted” of the predicate
crime or crimes. § 13-705(C)-(F), (I), (K); see also § 13-705(G) (“has previously been
convicted”). And a delinquency adjudication is not the same as a criminal conviction; the
two are qualitatively different. See David G. v. Pollard ex rel. Pima County, 207 Ariz.
308, ¶ 25, 86 P.3d 364, 369 (2004) (“[A] determination that [a] juvenile committed a
delinquent act is not considered to be a criminal conviction.”). As A.R.S. § 8-207(A)
provides:
Except as provided by [A.R.S.] § 13-904, subsection
H, [A.R.S.] § 13-2921.01, [A.R.S.] § 17-340 or [A.R.S.]
§§ 28-3304, 28-3306 and 28-3320, an order of the juvenile
court in proceedings under this chapter shall not be deemed a
conviction of crime, impose any civil disabilities ordinarily
resulting from a conviction or operate to disqualify the
juvenile in any civil service application or appointment.
Consequently, no court could ever find that, as a result of the present adjudication of
delinquency, Casey “has been previously convicted” of the underlying crime. See In re
Fernando C., 195 Ariz. 233, ¶ 5, 986 P.2d 901, 902 (App. 1999) (word “convicted” in
statute does not encompass minor’s delinquency adjudication). Rather, Casey’s offense
is a “[d]elinquent act,” defined in A.R.S. § 8-201(10) as “an act by a juvenile that if
committed by an adult would be a criminal offense.”2
2
Exceptions to this definition appear in A.R.S. § 13-501, which sets out the
circumstances under which juveniles shall or may be prosecuted as adults. Hence,
§ 8-201(10) also provides that a “[d]elinquent act does not include an offense under
§ 13-501, subsection A or B if the offense is filed in adult court.” None of the exceptions
identified in § 13-501 is applicable under the circumstances present here.
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¶6 Our legislature has repeatedly recognized the distinction between a
delinquency adjudication and a criminal conviction. See, e.g., § 13-904(A) (providing for
suspension of various civil rights following felony conviction, including, in § 13-
904(A)(5), “right to possess a gun or firearm”); § 13-904(H) (separately preventing
juveniles “adjudicated delinquent . . . for a felony” from “carry[ing] or possess[ing] a gun
or firearm”); § 13-2921.01(D) (defining “convicted” for purposes of § 13-2921.01 as
including either “convict[ion] of” or delinquency adjudication for domestic violence
offense); A.R.S. § 13-3101(7)(b) (defining prohibited possessor to include persons
“convicted . . . of a felony or . . . adjudicated delinquent for a felony”); A.R.S. § 13-
3821(A), (D) (requiring sex-offender registration by persons convicted of certain offenses
and, in separate subsection, permitting court to require registration by persons
adjudicated delinquent for those offenses); § 17-340(A), (B) (prescribing penalties for
wildlife violations “[u]pon conviction or after adjudication as a delinquent juvenile”);
§ 28-3304(C) (defining “conviction” to include specifically “a final adjudication or
judgment, including an order of a juvenile court finding that a juvenile violated any
provision of this title or committed a delinquent act that if committed by an adult would
constitute a criminal offense”); § 28-3320(E) (same as § 28-3304(C)).
¶7 Thus, had the legislature intended the definition of a “predicate felony” for
purposes of § 13-705 also to include delinquency adjudications for acts that otherwise
would constitute dangerous crimes against children if committed by an adult, we can
assume it would have expressly so provided. See State v. Zinsmeyer, 222 Ariz. 612, ¶ 31,
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218 P.3d 1069, 1081(App. 2009) (court presumes legislature expresses what it intends).
Accordingly, we reverse the juvenile court’s ruling denying Casey’s motion to strike and
remand the case with instructions to grant the motion and to excise from the record any
references designating Casey’s offense as a dangerous crime against children. In all other
respects, we affirm the juvenile court’s orders of adjudication and disposition.
/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Judge
CONCURRING:
/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Presiding Judge
/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Judge
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