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Name: In re N.D.
Case #: F053397
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 10/21/2008

The amendments to Welfare and Institutions Code sections 731 and 733, with an effective date of September 1, 2007, that limit the juvenile court’s authority to commit a ward to the Division of Juvenile Facilities (DJF), do not apply to a disposition occurring prior to September 1, 2007. On September 1, 2007, amendments to Welfare and Institutions Code sections 731 and 737 took effect. Section 731 authorizes the court to commit a ward to the DJF for an offense described in Welfare and Institutions Code section 707, subdivision (b), who is not otherwise ineligible for commitment under section 733. Section 733 provides that a ward shall not be committed to DJF if the most recent offense in any petition is not one described in section 707, subdivision (b), unless it is a sex offense set forth in Penal Code section 290, subdivision (d)(3). Finding that the amendments do not mitigate punishment because they do not reduce the amount of potential confinement time, but rather only address where a ward may be confined, the court held that the common-law doctrine requiring retroactive application of a statute intending to lessen punishment did not apply. (In re Estrada (1965) 63 Cal.2d 740.) The court declined to extend People v. Benefield (1977) 67 Cal.App.3d 51 to the instant case. Benefield set aside appellant’s sentence to state prison for a murder he committed as a juvenile, holding that Welfare and Institutions Code, section 707.2, as amended, required that defendant be remanded to the custody of the Youth Authority, for evaluation and report concerning his amenability to treatment by the Youth Authority, before being sentenced to state prison. Section 707.2 became effective after defendant had been sentenced, but prior to final judgment. This court found section 707.2 to have a punishment mitigating effect as it dealt with state prison versus DJF confinement, whereas sections 731 and 733 deal with confinement in DJF versus a county facility, not a mitigation of punishment. The court also rejected appellant’s argument that In re Pedro T. (1994) 8 Cal.4th 1041, 1054, fn. 3 (dis. opn.) and People v. Ledesma (2006) 39 Cal.4th 641 applied. Accordingly, the minor’s commitment to DJF following his failure on probation for a 2005 first degree burglary was upheld.