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In re A. G.

July 28, 2010

IN RE A. G., A PERSON COMING UNDER THE JUVENILE COURT LAW.
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
A. G., DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of San Diego County, Laura H. Parsky, Judge. Affirmed in part and reversed in part. (Super. Ct. No. J220062).

The opinion of the court was delivered by: McDONALD, J.

OPINION ON REHEARING

CERTIFIED FOR PUBLICATION

The People alleged in an amended petition that A. G., a minor, came within the juvenile court jurisdiction under Welfare and Institutions Code*fn1 section 602 because she violated Vehicle Code sections 23136, subdivision (a), and 22349, subdivision (a), and the curfew provisions codified in San Diego Municipal Code section 58.0102. The court found true the allegations of the Vehicle Code section 22349, subdivision (a), violation and the San Diego Municipal Code section 58.0102 violation, and found A. G. was a person described in sections 601 and 602. At the dispositional hearing, the court placed A. G. on six months' probation.

A. G. challenges the true finding that she violated either San Diego's curfew ordinance (San Diego Ord. No. 0-18416, hereafter the curfew ordinance) or San Diego Municipal Code section 58.0102, the codification of the curfew ordinance. She asserts both the curfew ordinance and San Diego Municipal Code section 58.0102 contain an implied prerequisite requirement for a true finding that she must have previously received a curfew violation warning citation, and there was no evidence she had previously received a warning citation. She also raises a due process claim arising out of the discrepancy, discussed at parts I.C. and II, between the curfew ordinance and its codification in San Diego Municipal Code section 58.0102. She also asserts the curfew ordinance and San Diego Municipal Code section 58.0102 violate the equal protection clauses of the United States and California Constitutions.

I. FACTUAL AND PROCEDURAL HISTORY

A. The Offenses

On May 28, 2008, at approximately 1:00 a.m., Officer Rodriguez of the California Highway Patrol stopped a speeding vehicle on Interstate 8. A. G. was driving, and was the sole occupant of, the vehicle. Rodriguez asked A. G. why she was speeding, and A. G. responded that she was trying to arrive home before her parents. Rodriguez also noticed signs A. G. had been consuming alcohol and administered two field sobriety tests. Although he concluded A. G. had been drinking alcohol, and the amended petition included the allegation that A. G. had violated Vehicle Code section 23136, subdivision (a), that allegation was dismissed at trial.

B. The Hearings

Defense counsel objected to the amended petition to the extent it added the alleged San Diego curfew violation. Defense counsel argued that the "[section] 625.5[, subdivision] (d) process has [not] been followed," and a true finding for violating curfew based merely on her "passing through a town" would deny A. G. her rights under both the federal and state Constitutions. The court noted A. G.'s objections but proceeded with trial. After hearing the evidence and further argument, the trial court entered true findings that A. G. violated San Diego Municipal Code section 58.0102 and Vehicle Code section 22349, subdivision (a), and found she was a person described in sections 601 and 602.

C. The Appellate Proceedings

After the parties filed their initial briefs, and responded to this court's inquiry with supplemental briefs focusing on the validity of San Diego Municipal Code section 58.0102 under the equal protection clauses, and after hearing oral argument, this court filed its initial opinion in this matter (People v. A. G. (Feb. 4, 2010, D053991)) concluding San Diego Municipal Code section 58.0102 was invalid under equal protection principles. Our conclusion was based, in part, on the fact that San Diego Municipal Code section 58.0102, subdivision (c)(7), provided a defense to prosecution when the minor was "attending an official school, religious, or other recreational activity supervised by adults and sponsored by the City of San Diego, a civic organization, or another similar entity that takes responsibility for the minor," but did not permit the minor to travel to or from those activities after 10:00 p.m. unless accompanied by an adult. (San Diego Mun. Code, §§ 58.0101, 58.0102, subd. (c)(7).)

After People v. A. G. was filed, the People petitioned for rehearing. In support of the request for rehearing, the People conceded San Diego Municipal Code section 58.0102, subdivision (c)(7) contained no "coming and going" supplement to the activities exempted under that subdivision. However, the People informed this court, for the first time, that the curfew ordinance (ostensibly codified in San Diego Mun. Code, § 58.0102) did contain a "coming and going" supplement for "attending an official school, religious, or other recreational activity supervised by adults and sponsored by the City of San Diego, a civic organization, or another similar entity that takes responsibility for the minor." (San Diego Ord. No. 0-18416, § 2; San Diego Mun. Code, § 58.0102, subd. (c)(7).) This court granted the petition for rehearing, and asked the parties to file supplemental briefs addressing several key issues raised by the discrepancy between the curfew ordinance and the incomplete codification of that ordinance in San Diego Municipal Code section 58.0102. First, does the discrepancy between an ordinance or statute enacting a law and the incomplete codification of the law raise additional issues that require evaluation by the court? Second, when a discrepancy exists between an ordinance or statute enacting a law and the codification of the law in a municipal or other code, which law must the court examine to evaluate constitutional challenges to a true finding of violation of the law? Finally, assuming this court must focus on City of San Diego Ordinance No. 0-18416 and disregard San Diego Municipal Code section 58.0102, did the presence of a "going to and returning home from" supplement to "attending an official school, religious, or other recreational activity" exception cure the infirmities discussed by this court in its initial opinion? Both parties have filed supplemental briefs, and we now evaluate the issues presented considering this newly disclosed landscape.

II. THE ORDINANCE RATHER THAN THE CODIFICATION IS THE RELEVANT LAW

As a preliminary matter, we first determine which version--the ordinance or the codification--is the relevant enactment for purposes of assessing A. G.'s various challenges to the true finding she violated the San Diego curfew.

The People argue, and A. G. concedes, numerous cases have stated that when there is a conflict between a challenged law as enacted and as codified, the court must treat the law as enacted as the relevant and controlling law. (See Stephan v. U.S. (1943) 319 U.S. 423, 426; U.S. v. Welden (1964) 377 U.S. 95, 98, fn. 4; U.S. v. Ward (3d Cir. 1997) 131 F.3d 335, 339-340.) The codification of statutory enactments serves to compile and publish the enactments, but "the fact that published versions of the... Code do not include [all of the enactment] is of no moment. 'A compilation of laws... is merely a systematic arrangement of all the statutes of a particular state published to facilitate the discovery of the law.... The omission of statutes from the compilation, disastrous as it may be to the hurried lawyer in search of the statutory material, is without effect and if the statute is still in force its omission from the compilation is without legal significance.' [Quoting 1A Sutherland, Statutory Construction (4th ed. 1973) § 28.04, p. 318.]" (People v. Andrade (1983) 141 Cal.App.3d Supp 36, 40.) The codification "cannot prevail over the [enactment] when the two are inconsistent" (Stephan v. U.S., supra, 319 U.S. at p. 426), and accordingly, "when there is a conflict during the process of codification, the Act as originally passed controls." (State v. Hicks (Tenn. 1992) 835 S.W.2d 32, 37.)

Although A. G. asserts the language in the above-cited cases was dicta, at least one of the cases--U.S. v. Ward, supra, 131 F.3d 335--involved resolution of a conflict between the enactment and the codification necessary to the decision. In Ward, the issue was whether the trial court had properly ordered the defendant to be tested for the presence of HIV. At trial, the prosecution argued the court had the power to order the testing for the presence of HIV pursuant to the Violence Against Women Act (108 Stat. 1796, 1945-50), codified in part at title 42 United States Code sections 10607(c) and 14011 (1995). The trial court rejected the Violence Against Women Act as a basis for permitting the test, finding it "void" because a codification defect did not specify which individuals were subject to testing for the presence of HIV, even though the Statutes at Large did identify which individuals would be subject to testing. (Ward, at pp. 338-339.) The appellate court held that, although the codification errors resulted in "a clear conflict between the codification and Statutes-at-Large version of the Act... 'the Code cannot prevail over the Statutes at Large when the two are inconsistent.' [Quoting Stephan v. U.S., supra, 319 U.S. at p. 426]... When there is such a conflict, the version in the Statutes at Large... must control." (Ward, at pp. 339-340.) The court concluded that because "the codified version of the Act was not the fault of [Congress] but of the codifiers [and] the Act gave the district court authority to order the accused to undergo a blood test if the showing prescribed [by the Act] was made" (id. at p. 340), the appellate court remanded the case to the district court with directions to apply the Act and to make the Act's factual findings to assess whether to order the testing. (Id. at p. 343.)

We are convinced by the foregoing authorities that, at least to the extent we assess A. G.'s challenge to the true finding on the ground that she had not received the prior warning as provided in section 625.5,*fn2 we must assess the provisions contained in City of San Diego Ordinance No. 0-18416 (and concomitantly disregard San Diego Mun. Code, § 58.0102 to the extent it differs from San Diego Ord. No. 0-18416) to resolve that claim.

III. THE SAN DIEGO CURFEW ORDINANCE

The San Diego curfew ordinance provides it is unlawful for any minor to be present in any public place or on the premises of any establishment within the City of San Diego between the hours of 10:00 p.m. any evening of the week, until 6:00 a.m. the following day. (San Diego Ord. No. 0-18416, § 2; San Diego Mun. Code, §§ 58.0101, 58.0102, subd. (a).) However, the curfew ordinance also specifies (San Diego Ord. No. 0-18416, § 2; San Diego Mun. Code, § 58.0102, subd. (c)) that it is a defense to prosecution under that ordinance when the minor is:

"(1) accompanied by the minor's parent or guardian, or by a responsible adult;

"(2) on an errand at the direction of the minor's parent or guardian, or the responsible adult, ...


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