Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. 201260.
Banke, J.
Daniel Elizalde (defendant) appeals from a judgment following a guilty plea to one count of second degree murder. He contends the trial court erred in denying a motion to suppress a statement he made during a telephone call placed from a police interview room. He also contends the court erred in determining he was ineligible for a juvenile disposition. We affirm the judgment.
FACTUAL BACKGROUND
We confine our recitation of the facts to those pertinent to the issues on appeal. On April 30, 2006, Joanne Zaldibar was walking in San Francisco with her boyfriend, Karl Bartolome, and his five-year-old nephew, Isaiah. As they crossed a street, defendant stepped out of a black Cadillac and confronted them. He asked Bartolome, “ ‘Are you that little boy that called me a punk?’ ” Zaldibar saw defendant had a gun, alerted Bartolome, and started walking away with Isaiah. When she heard two gunshots, she ran and hid with Isaiah. From her hiding place, Zaldibar could see Bartolome lying on the ground. She knew defendant because they had attended the same high school, and she identified him in a photo lineup.
Defendant was arrested and taken to the police station, where Inspector Joseph Toomey attempted to interview him. Toomey told defendant he was under arrest for murder and advised him of his Miranda rights. Defendant refused to discuss the case and asked to speak with his mother. Toomey said there was no telephone in the room, but he would “see what [he] could do.” As Toomey left, defendant asked him to leave the door to the interview room open. Toomey said he had to shut the door, and did so. A few moments later, Toomey returned with his own cell phone, which did not have any recording apparatus attached. Toomey dialed the number defendant provided for his “mother” and left the interview room, shutting the door.
Miranda v. Arizona (1966) 384 U.S. 436.
Toomey went into another room and used earphones connected to a recording device in the interview room to listen to defendant’s side of the telephone call. Toomey heard defendant say: “Hello, hello, cousin. They caught me, Blood. I am—I need you to call—what, what’s Juan’s number? This fucking. Man, I need you to off that bitch and tell [Juan] to off that bitch. She is the only one that witnessed that shit. All right.” Toomey could not hear anything said by the person to whom defendant spoke.
At the preliminary hearing, defendant moved to suppress his recorded statements, arguing the recording violated state and federal wiretap laws (18 U.S.C. § 2510 et seq.; Pen. Code, § 629.50 et seq.) and his Fourth Amendment right to privacy. The trial court denied the motion.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant renewed his motion to suppress in a pretrial motion, but did not offer any new evidence. The trial court denied his renewed motion, explaining: “[U]nder People v. Riel,.. . a 2000 decision,... jail conversation, phone conversations from jail can be recorded.... [¶] And People v. Davis 36 Cal.4th 510, 2005, eavesdropping. I don’t perceive this as a wiretap or intercept. Eavesdropping on conversations of three suspects while they were detained at a police station is allowed, and I perceive this more as an eavesdropping versus a wiretap, particularly since the inspector only had one side of the conversation, which was there in a police interrogation room. And I don’t believe that the defendant had an expectation of privacy, nor was the—on the other side of the line—of the conversation was that person taped or tapped. So I believe that this is an eavesdropping case. So, therefore, I am going to deny the motions.”
Defendant sought writ relief, which this court denied (case No. A118250). The California Supreme Court, in turn, denied his petition for review (case No. S154805).
Thereafter, defendant entered a negotiated plea of guilty to one count of murder in the second degree. On the district attorney’s motion, the trial court dismissed several related firearm enhancements (§§ 12022.53, subd. (d), 12022.5, subd. (a)), and one count of solicitation to commit murder (§ 653f, subd. (b)). Defense counsel stated she informed defendant the punishment for second degree murder is 15 years to life. She also advised him “the [d]istrict [a]ttorney has recommended, and the [c]ourt has indicated, the following sentence of 15 years to life in [s]tate [p]rison.” After the court obtained the required Boykin-Tahl waivers and a stipulation to a factual basis for the plea, it accepted defendant’s plea. At defense counsel’s request, the court also set a sentencing hearing.
Boykin v. Alabama (1969) 395 U.S. 238 (Boykin); In re Tahl (1969) 1 Cal.3d 122 (Tahl).
At the sentencing hearing, defendant argued the court had discretion under section 1170.19, subdivision (a)(4), to “order a juvenile disposition... in lieu of a sentence” and urged the court to do so, instead of imposing a prison sentence. The district attorney opposed “any kind of juvenile adjudication” and urged the court to impose the “sentence of fifteen years to life.” The trial court expressed considerable doubt as to the propriety of a juvenile disposition but nonetheless allowed defendant to present evidence on the issue.
The court ultimately denied defendant’s request for juvenile disposition. It found defendant was ineligible for such a disposition because section 1170.19, subdivision (a)(1), specifies “a person may only be committed to the Youth Authority to the extent he meets the eligibility requirements set forth under 1732.6 of the Welfare and Institutions Code.” It found defendant did not meet those requirements because he committed the crime “roughly a week or two before his 18th birthday,” and the sentence he faced was an indeterminate term of 15 years to life. The trial court further observed “the crime in this case... was of such a nature that the potential sentence... with the use of a firearm was 40 years to life. [D]efendant entered a plea [to] second degree murder, which is 15 to life. [¶] It was the kind of street crime that this community is being plagued by; and the decision to shoot somebody, regardless of what that person has done, in vigilante style activity is why we have a homicide rate in this community that is so outrageous. [¶] If you are a victim of a crime, your opportunity is to report it, not to take it into your own hands and to engage in the type of vigilante behavior which this case suggests.” The court sentenced defendant to the indeterminate term of 15 years to life, with 788 days of credit for time served. Defendant filed a timely notice of appeal.
Effective July 1, 2005, the Department of Youth Authority has been renamed “the Department of Corrections and Rehabilitation, Division of Juvenile Facilities” (hereafter DJF). (Welf. & Inst. Code, § 1703, subd. (c).)
DISCUSSION
I. Denial of Motion to Suppress
A. Standard of Review
In reviewing the trial court’s denial of a suppression motion, “ ‘we view the record in the light most favorable to the trial court’s ruling, deferring to those express or implied findings of fact supported by substantial evidence.’ [Citations.] We independently review the trial court’s application of the law to the facts.” (People v. Davis, supra, 36 Cal.4th at pp. 528-529 (Davis).)
B. Monitoring and Recording Defendant’s Side of a Telephone Conversation Did Not Violate Federal or State Wiretap Statutes
The federal law is set forth in Title III of the Omnibus Crime Control and Safe Streets Act of 1968. (18 U.S.C. §§ 2510-2520 (hereafter Title III).) The relevant state law is set forth in Penal Code sections 629.50-629.98, 631, and 632.
Title III draws a distinction between “wire communication” (18 U.S.C. § 2510(1)) and “oral communication” (18 U.S.C 2510(2)). Except as otherwise expressly permitted by Title III, interception of a “wire communication” is unlawful irrespective of whether the communication is made with an expectation it is private or not subject to interception. (18 U.S.C. § 2511(1)(a); see People v. Otto (1992) 2 Cal.4th 1088, 1098-1099, fn. 7 [recognizing a “wire communication” intercepted by an illegal wiretap “ ‘is... protected by Title III regardless of whether the participants actually have any justifiable expectations of privacy.’ ”].) Interception of an “oral communication,” on the other hand, is unlawful only if it is “uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.” (18 U.S.C. § 2510(2).)
Title 18 United States Codes section 2510(4) provides: “ ‘intercept’ means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.”
California law similarly prohibits the interception of any “wire communication” defined by section 629.51. (§§ 629.50 [requiring court order for the interception of a “wire, electronic, pager, or electronic cellular telephone communication”], 631 [making violation a criminal offense].) It also makes it an offense to use an “electronic amplifying or recording device” to eavesdrop on, or to record a confidential communication even if not carried by wire. (§ 632, subd. (a).) Thus, as with federal law, eavesdropping is not a crime under state law unless the communication is “confidential,” meaning it is “carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties....” (§ 632, subd. (c).) A communication is not “confidential” if it takes place in any “circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.” (Ibid.)
The definition of a “wire communication” under the relevant federal and state statutes is essentially the same. Both define “wire communication” as “any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception....” (18 U.S.C. § 2510(1); Pen. Code, § 629.51, subd. (a).) The only difference is the federal definition applies to transmission of “interstate or foreign communications or communications affecting interstate or foreign commerce.” (18 U.S.C. § 2510(1).)
Defendant’s principal argument on appeal is that monitoring and recording his side of the telephone conversation constituted an interception of a “wire communication,” which is unlawful regardless of any expectation of privacy. However, our state Supreme Court and federal courts consistently have held the monitoring or recording of words that happen to be spoken into a telephone receiver, but can be heard in the area surrounding the speaker, does not constitute the “interception” of a “wire communication.” In these circumstances, monitoring or recording the words of the speaker merely memorializes what can be seen and heard in the speaker’s presence.
In People v. Siripongs (1988) 45 Cal.3d 548 (Siripongs), the defendant was arrested for murder and placed in an interview room in the police station. When he asked for an attorney, the police refrained from interviewing him. Later that night, while the defendant was still being held at the station, a detective told him he would be allowed to make two telephone calls. The detective hid a tape recorder in his jacket pocket and escorted the defendant to a telephone located in a hallway. After dialing a number for the defendant, the detective stood about three feet away and secretly tape recorded the defendant’s words while he spoke on the telephone. (Id. at p. 561.) The Supreme Court rejected the defendant’s argument that the recording constituted an illegal wiretap. The detective “did not ‘intercept’ the conversation ‘through the use of any electronic, mechanical, or other device,’ as prohibited by 18 United States Code section 2510(4). Rather, he heard the conversation with his normal hearing faculties and the tape recording merely memorialized what he heard. Accordingly, no interception of a wire communication occurred.” (Id. at p. 564.)
In Siripongs v. Calderon (9th Cir. 1994) 35 F.3d 1308, 1319, in the context of a federal habeas petition brought by the same defendant, the Court of Appeals for the Ninth Circuit reached the same conclusion. The circuit court held there was no interception of a wire communication because the police “acquired only what they recorded Siripongs saying into the mouthpiece, not what was transmitted over the wire.” (Id. at p. 1320.)
Similarly, in United States v. Carroll (D.C. 1971) 332 F.Supp.1299, 1301 (Carroll), cited by the court in Siripongs, “[o]nly one side of the telephone calls was recorded and no device was affixed to any wire or used to pick up any talk from a wire.” (Carroll, at p. 1300.) The federal district court concluded, “the overhearing and recording of one end of a telephone conversation without the actual interception of a communication passing through the wires, was not intended to be included within the definition of the term ‘wire communication’ but under the statute is simply another form of oral communication.” (Id. at p. 1301.) Thus, “[n]o interception of a wire communication [was] involved.” (Ibid.) The district court further observed this interpretation of the meaning of wire communication, “avoids a potentially confusing overlap between the distinct criminal offenses of intercepting a wire communication and intercepting a private oral communication.” (Ibid.)
People v. Suttle (1979) 90 Cal.App.3d 572 (Suttle), also cited in Siripongs, involves facts remarkably similar to those before us. In Suttle, the police arrested two defendants and placed them in separate cells, separated by a corridor. The area was equipped with a hidden listening device connected to a tape recorder. The police permitted one of the defendants to call his mother using a portable telephone. His side of the conversation was recorded by the hidden listening device. (Suttle, at p. 576.) The defendant asserted recording his side of the telephone conversation was an illegal wiretap in violation of Title III. (Suttle, at p. 578.) The Court of Appeal disagreed, holding the portion of a telephone conversation that can be heard by anyone in the vicinity of the speaker is not a “wire communication.” (Id. at p. 579.) “Although the speaker’s voice is carried over the telephone wire, it also escapes into the area surrounding the speaker for some distance and can be overheard without resort to interception of it over the wire.” (Ibid.) Therefore, the defendant’s side of the conversation was no different than any other oral communication and was protected only if the defendant had a reasonable expectation of privacy in the communication. (Ibid.)
We discern no meaningful distinction between the facts of this case and the facts of Siripongs, Carroll, and Suttle for the purpose of determining whether defendant’s side of the telephone conversation was a “wire communication” under Title III. Defendant attempts to distinguish Siripongs by noting the police officer there stood next to the defendant as he spoke on the telephone whereas, here, Inspector Toomey left defendant alone in the interview room and shut the door. This factual distinction goes only to the issue of whether defendant had any reasonable expectation of privacy in his oral communication, not to whether his side of the telephone conversation was a “wire communication.” The trial court correctly determined the monitoring and recording of defendant’s side of the telephone conversation did not constitute an “interception” of a “wire communication” in violation of Title III.
For similar reasons, monitoring and recording defendant’s side of the telephone conversation did not violate state law. “[S]ection 631 prohibits ‘wiretapping,’ i.e., intercepting communications by an unauthorized connection to the transmission line.... In order to violate section 631 it is necessary that the intercepted communication be carried over ‘... telegraph or telephone wire, line, cable, or instrument of any internal telephonic communication system....’ ” (People v. Ratekin (1989) 212 Cal.App.3d 1165, 1168-1169 (Ratekin).) Toomey’s use of monitoring and recording devices to listen to and record defendant’s side of the telephone conversation did not involve any unauthorized connection to a transmission line, and therefore was not a wiretap under state law. Instead, the monitoring and recording of defendant’s side of the telephone conversation falls into the category of “eavesdropping,” which is not prohibited if the conversation took place under circumstances in which the defendant would “reasonably expect that the communication may be overheard or recorded.” (§ 632, subd. (c).)
In his reply brief, defendant contends Ratekin’s distinction between wiretapping and eavesdropping is no longer valid in light of 2002 amendments to the definitions of “wire communication” and “aural transfer” (§ 629.51, subds. (a) & (d)). He argues these amendments broadened the definition of a “wire communication” so that, unlike Title III, California’s definition of wire communication now includes the recording of words by a listening device installed in a room if the words happen to be spoken into a telephone. This contention is without merit. The state definitions are, in all material respects, identical to the definitions of “wire communication” and “aural transfer” in Title III, and as we have discussed there was no interception of a wire communication under Title III. (See 18 U.S.C. § 2510(1) & (18).)
Defendant next contends, although with considerably less fervor, that the trial court should have suppressed his statements because he had “an expectation that such communication is not subject to interception under circumstances justifying such expectation” (18 U.S.C. § 2510(2)) and did not “reasonably expect that the communication may be overheard or recorded.” (§ 632, subd. (c).) Since this argument is essentially the same as his argument that the monitoring and recording violated his Fourth Amendment rights, we address it below.
C. Monitoring and Recording Defendant’s Side of a Telephone Conversation Did Not Violate Any Fourth Amendment Right
Untethered to any particular statutory scheme, defendant argues listening to and recording his side of the telephone conversation violated his Fourth Amendment right to be free of unreasonable searches and seizures. This contention fails because any expectation of privacy defendant may have harbored in the police interview room following his arrest for murder was unreasonable.
Indeed, well-established authority holds that a detainee, whether held in jail or a police interview room, has no reasonable expectation his or her conversations will not be monitored or recorded. (Davis, supra, 36 Cal.4th at p. 528; People v. Riel (2000) 22 Cal.4th at 1153, 1183-1184 [pretrial detainee had no reasonable expectation conversation with mother and sister in jail visiting room would not be recorded]; Donaldson v. Superior Court (1983) 35 Cal.3d 24, 27, & 29, fn. 3 (Donaldson) [defendant and his brother had no reasonable expectation of privacy with respect to a conversation they had in a police interview room because “under settled federal precedent..., the secret monitoring and recording of unprivileged conversations in prisons, jails, and police stations” does not constitute an unlawful search]; Ahmad A. v. Superior Court (1989) 215 Cal.App.3d 528, 535-536 [juvenile had no reasonable expectation conversation with mother in an interrogation room with door closed would not be recorded]; People v. Owens (1980) 112 Cal.App.3d 441, 444, 448 [recording of conversation between two suspects in an interview room at a police station did not violate the Fourth Amendment or state constitutional protection of privacy].)
In Davis, supra, 36 Cal.4th at page 528, for example, the police placed three suspects, one of whom was the defendant, in an isolated holding area at a police station, and the police recorded their conversations. (Id. at p. 523.) The trial court denied the defendant’s motion to suppress. The Supreme Court affirmed, noting: “In several cases we have rejected defendants’ Fourth Amendment challenges to the admission of evidence obtained by tape recording conversations in jail. (See People v. Riel, [supra,] 22 Cal.4th [at pp. ]1183-1184... [conversation between defendant and family members in a jail visiting room]; People v. Hines (1997) 15 Cal.4th 997, 1043... [conversation between a defendant and another suspect in a jail holding cell before they were charged]; Donaldson [supra, ] 35 Cal.3d [at pp. ]28-30... [conversation between a defendant and his brother in police station interview room].) Those cases relied on Lanza v. New York (1962) 370 U.S. 139... (Lanza), in which the United States Supreme Court concluded that Fourth Amendment protections do not apply inside a jail because a jail ‘shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room’ and ‘[i]n prison, official surveillance has traditionally been the order of the day.’ (Lanza, supra, 370 U.S. at p. 143.)” (Id. at pp. 524-525.) The court rejected the defendant’s argument that Lanza had been undercut by Katz v. United States (1967) 389 U.S. 347, 351. (Davis, at p. 525.)
The Davis court also recognized a split of authority had emerged as to whether the holding in Hudson v. Palmer (1984) 468 U.S. 517 (Hudson)—“that convicted prisoners lack any expectation of privacy in their cells applies with equal force to persons who are still facing trial,”—applies only to security related searches. The court followed the line of cases construing “Hudson as validating any jail house search [including eavesdropping], regardless of its purpose, and as applying to persons incarcerated before trial as well as to convicted prisoners.” (Davis, supra, 36 Cal.4th at pp. 526-527.)
Defendant spills much ink in an attempt to persuade this court the Davis court’s reading of Hudson and its extension to eavesdropping was not well-reasoned. Without belaboring the details of his critique, we need only note as a court of intermediate appellate jurisdiction we are bound to follow the decisions of our state Supreme Court. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Defendant next asserts that, even if a pretrial detainee in a police interview room has no reasonable expectation his conversations will not be monitored, Inspector Toomey created a reasonable expectation of privacy by providing defendant with the inspector’s own cell phone, leaving defendant alone in the room, and shutting the door. In support of this proposition, defendant relies upon North v. Superior Court (1972) 8 Cal.3d 301 (North). In North, the defendant sought to suppress the recording of a conversation he had with his wife at a police station after he had been arrested. The court noted “the general rule that an inmate of a jail or prison has no reasonable expectation of privacy....” (Id. at p. 311.) Nonetheless, the North court held the defendant had a reasonable expectation of privacy based upon the combination of two factors: (1) The police detective created a subjective expectation of privacy, lulling the defendant and his wife into believing their conversation would be confidential by surrendering his own private office to them; leaving them alone and shutting the door and; (2) The subjective expectation was objectively reasonable in light of the statutory presumption that marital communications are confidential. (Id. at pp. 311-312.) The North court emphasized its holding was limited to this unique combination of circumstances, and “nothing in our opinion should be deemed a disapproval of the common practice of monitoring inmates’ conversations with others, including their spouses, in visiting rooms or similar places.” (Id. at p. 312.)
Defendant’s reliance on North is misplaced because, as the Supreme Court explained in Donaldson, “[t]he North opinion stood on two grounds: the marital privilege and the deliberate creation of an expectation of privacy.” (Donaldson, supra, 35 Cal.3d at p. 31.) In the years following North, “all attempts to suppress conversations based upon unprivileged relationships failed.” (Donaldson, at p. 32, italics added.) Defendant identifies no privilege applicable to his telephone conversation with an unidentified third party asking that party to help eliminate a key witness, and we cannot conceive of one. Nor did Inspector Toomey’s actions rise to the level of those in North and amount to the deliberate creation of an expectation of privacy. Defendant’s conversation did not take place in a private office, but rather in an interview room in the homicide unit. Inspector Toomey had informed defendant he was under arrest for murder and had given him the Miranda warning, advising not only that he had the right to remain silent, but also that anything he said could be used against him in court. Although Inspector Toomey closed the door when he left the room, he explained to defendant he had to keep the door closed, clearly conveying the door was closed not for defendant’s privacy, but for security.
Defendant also attaches significance to the fact he was still a minor and asked to call his mother. Even if defendant had used Inspector Toomey’s cell phone to talk to his mother, as he had represented, that would not have warranted an expectation of privacy. (See Ahmad A. v. Superior Court, supra, 215 Cal.App.3d at pp. 535-536 [juvenile had no reasonable expectation conversation with mother in closed interrogation room would not be recorded.]) That defendant, instead, used the phone to contact someone else, make incriminating statements and try to arrange the murder of a key witness, may evince his own subjective expectation that anything he said in the interview room would not be monitored. But nothing Inspector Toomey did, and none of the other circumstances, rendered that expectation objectively reasonable. “Indeed, in the jail house the age-old truism still obtains: ‘Walls have ears.’ ” (Id. at p. 536.)
In sum, no person in defendant’s position, under arrest for murder and being held in a police interview room in the homicide unit, could reasonably expect a police officer would provide a cell phone and allow its unfettered and confidential use. “Hope would be the most that anyone in such a situation could have had, and hope falls far short of what the law recognizes as a reasonable expectation.” (People v. Finchum (1973) 33 Cal.App.3d 787, 791.) We conclude defendant had no reasonable expectation anything he said in the police interview room would be private. Therefore, the monitoring and recording of defendant’s side of the cell phone conversation did not violate the Fourth Amendment. For the same reasons, we reject defendant’s statutory argument under the federal and state wire tap laws that the court should have suppressed his recorded statements. He did not exhibit “an expectation that such communication is not subject to interception under circumstances justifying such expectation” (18 U.S.C. § 2510(2)) and could only have “reasonably expect[ed] that the communication may be overheard or recorded.” (§ 632, subd. (c).)
II. Juvenile Disposition in Lieu of Prison Sentence
Defendant next asks this court to reverse and remand for resentencing on the grounds the trial court erred in concluding it had no discretion under section 1170.19 to order a “juvenile disposition... in lieu of a sentence.” He further contends, even if he is statutorily ineligible for a juvenile disposition under section 1170.19, the court had discretion to consider a juvenile disposition pursuant to section 1385. Finally, he asserts even if he had no statutory right to have the court consider a juvenile disposition, federal due process requires the court to do so. Because defendant failed to obtain a certificate of probable cause, he cannot advance any of these arguments on appeal. In any case, none has merit.
A. Necessity for Certificate of Probable Cause
This is an appeal from a judgment based upon a plea of guilty, and the sentence imposed did not exceed the maximum specified, i.e., 15 years to life. The Attorney General argues the sentencing issue defendant raises is, in effect, an attack on the validity of the plea and defendant therefore may not raise the issue in the absence of a certificate of probable cause. (§ 1237.5.)
“[A] challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself” and may not be raised on appeal absent a certificate of probable cause. (People v. Panizzon (1996) 13 Cal.4th 68, 79.) Similarly, where, as here, the plea did not include a specific negotiated term, but rather an indicated sentence that is the maximum for the charges to which the defendant pleaded no contest, but significantly less than the sentence he faced under the original charges, the “maximum sentence was ‘part and parcel’ of the plea bargain the parties negotiated.... Thus, by challenging the negotiated maximum sentence imposed as part of the plea bargain, defendant is challenging the validity of his plea itself.” (People v. Cuevas (2008) 44 Cal.4th 374, 383-384.) “ ‘When a guilty [or nolo contendere] plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement.’ [Citations.]” (Panizzon, supra, 13 Cal.4th at p. 80.)
As the trial court noted at the sentencing hearing, defendant received a significant reduction in the potential amount of prison time because the prosecutor agreed, in exchange for the plea, to designate the murder charge as second degree and dismissed the solicitation of murder charge that carries a maximum term of nine years (§ 653f, subd. (b)) and the section 12022.53, subdivision (d) firearm enhancement. By negotiating the reduction of the murder charge and dismissal of the other charge and enhancement, defendant necessarily understood and agreed that he faced a significantly reduced sentence. In these circumstances, his challenge to the imposition of the prison term in lieu of a juvenile disposition “is an effort to unilaterally improve, and thus alter, the terms of that which was agreed and thus should not be permitted without a certificate of probable cause.” (People v. Young (2000) 77 Cal.App.4th 827, 833.) For this reason, alone, defendant’s arguments are unavailing.
B. Defendant Was Not Eligible for Juvenile Disposition
Defendant’s contention that the court had discretion to order a juvenile court disposition pursuant to Penal Code section 1170.19, subdivision (a)(4), also fails on the merits. As we explain more fully below, the trial court’s conclusion that it had no such discretion is not only supported by the plain terms of Penal Code section 1170.19, subdivision (a)(1), Welfare and Institutions Code section 1732.6, and California Rule of Court, rule 4.510(a), it is compelled by the Supreme Court’s decision in People v. Thomas (2005) 35 Cal.4th 635 (Thomas). In the face of the clear direction of these statutes, and the Supreme Court’s decision in Thomas, defendant’s effort to create an ambiguity where there is none, and to invoke the rule of lenity in support of his proposed alternative interpretation of these statutory provisions, is unavailing. (See People v. Avery (2002) 27 Cal.4th 49, 58.)
The task of statutory construction requires the court to turn first to the words of the statute, giving them their usual and ordinary meaning. When the statutory language is clear, it is unnecessary to go further to complete the task of ascertaining and effectuating legislative intent. (People v. Gardeley (1996) 14 Cal.4th 605, 621.) We therefore first review the language of the relevant statutes.
When, as in this case, the People exercise prosecutorial discretion pursuant to Welfare and Institutions Code section 707, subdivision (d)(1), to file criminal charges directly in adult court, Penal Code section 1170.17, subdivision (a), provides that the defendant upon conviction is “subject to the same sentence as an adult convicted of the identical offense, in accordance with the provisions set forth in subdivision (a) of Section 1170.19....” (Pen. Code, § 1170.17, subd. (a).)
Section 1170.19, subdivision (a), in turn, specifies that “[n]othwithstanding any other provision of law, the following shall apply to a person sentenced pursuant to Section 1170.17,” and then lists four enumerated subparts. (§ 1170.19, subd. (a).) The first and fourth are pertinent here. Subdivision (a)(1) provides a person “may be committed to the [DJF] only to the extent the person meets the eligibility criteria set forth in Section 1732.6 of the Welfare and Institutions Code.” (Id., subd. (a)(1).) Subdivision (a)(4) provides in relevant part “the court may order a juvenile disposition under the juvenile court law, in lieu of a sentence under this code, upon a finding that such an order would serve the best interests of justice, protection of the community, and the person being sentenced.” (Id., subd. (a)(4).)
Defendant does not dispute that he does not meet the eligibility criteria set forth in Welfare and Institutions Code section 1732.6. He was ineligible under subdivision (a) of Welfare and Institutions Code section 1732.6 because he was just a few weeks shy of his 18th birthday when he committed the offense, he was convicted of murder (an offense that is listed in Penal Code sections 667.5, subdivision (c), and 1192.7, subdivision (c)), and under the terms of the plea, and as specified by Penal Code section 190, subdivision (a), the sentence was an indeterminate term of 15 years to life. He was also ineligible under subdivision (b)(3) of Welfare and Institutions Code section 1732.6 because he was 16 years or older at the time of the offense, and he was convicted of murder, one of the offenses listed in Welfare and Institutions Code section 707, subdivision (b).
Defendant contends, however, that subdivision (a)(1) and (4) of section 1170.19 are unrelated and regardless of whether a defendant meets the eligibility criteria set forth in subdivision (a)(1), a trial court always has discretion to order a juvenile disposition under subdivision (a)(4). This contention disregards the structure of section 1170.19. Subdivision (a) specifies: “Notwithstanding any other provision of law, the following shall apply to a person sentenced pursuant to Section 1170.17.” (§ 1170.19, subd. (a), italics added.) “[T]he following” refers, and refers without limitation, to the four enumerated subparts of subdivision (a), including subparts (1) and (4). Accordingly, subdivision (a)’s overarching prefatory language cannot be squared with defendant’s contention that subdivision (a)(4) stands alone and provides an entirely separate basis to impose a juvenile disposition unrelated to subdivision (a)(1). Both enumerated subparts are part of the same subdivision, and the prefatory language of the subdivision makes clear both subparts apply to a person sentenced pursuant to section 1170.17. The fact that the first subdivision, (a)(1), addresses eligibility for a juvenile disposition under subdivision (a)(4), also reinforces what is plain from subdivision (a)’s prefatory language—that all of the enumerated subparts “apply to a person sentenced pursuant to Section 1170.17.” (§ 1170.19, subd. (a).) If a defendant cannot meet the threshold eligibility requirements set forth in subdivision (a)(1), there is, of course, no need for a court to move on to any of the other enumerated subparts of subdivision (a), including subpart (4).
The provisions of Welfare and Institutions Code section 1732.6 referenced in Penal Code section 1170.19, subdivision (a)(1), further dispel any notion that discretion to order a juvenile disposition pursuant to subdivision (a)(4) is not limited by subdivision (a)(1). Subdivision (a) of Welfare and Institutions Code section 1732.6 specifies: “(a) No minor shall be committed to the [DJF] when he or she is convicted in a criminal action for an offense described in subdivision (c) of Section 667.5 [a violent felony] or subdivision (c) of Section 1192.7 [a ‘serious felony’] of the Penal Code and is sentenced to incarceration for life, an indeterminate period to life, or a determinate period of years such that the maximum number of years of potential confinement when added to the minor’s age would exceed 25 years. Except as specified in subdivision (b), in all other cases in which the minor has been convicted in a criminal action, the court shall retain discretion to sentence the minor to the Department of Corrections or to commit the minor to the [DJF].” (Welf. & Inst. Code, § 1732.6, subd. (a), italics added.) Subdivision (b) of Welfare and Institutions Code section 1732.6 further provides: “No minor shall be committed to the [Division of Juvenile Facilities] when he or she is convicted in a criminal action for: [¶]... [¶]... (3) An offense described in subdivision (b) of Section 707, if the minor had attained the age of 16 years or older at the time of commission of the offense....” The implication of the phrase, “[e]xcept as specified in subdivision (b), in all other cases... the court shall retain discretion to sentence the minor to the Department of Corrections or to commit the minor to the [DJF],” is that the court does not have discretion to commit the minor to the DJF and must instead impose an adult criminal sentence under Penal Code section 1170.17, subdivision (a), if the minor is ineligible for a DJF commitment under subdivision (a) or (b) of Welfare and Institutions Code section 1732.6, as defendant is here.
In addition, California Rule of Court, rule 4.510 plainly states: “If the prosecuting attorney lawfully initiated the prosecution as a criminal case under Welfare and
Institutions Code section 602(b) or 707(d), and the minor is convicted of a criminal offense listed in those sections, the minor must be sentenced as an adult.”
We therefore perceive no ambiguity in this statutory scheme. Under the plain terms of section 1170.19, subdivision (a)(1) limits the discretion of a court to order a juvenile disposition under subdivision (a)(4). Thomas, supra, 35 Cal.4th 635, confirms our reading of the statutory language. The defendant in Thomas was charged with several counts of robbery and assault. He entered a plea of guilty to one count of robbery and admitted a firearm enhancement, in exchange for a negotiated sentence of 13 years. He asked the trial court to exercise its discretion under section 1170.19, subdivision (a)(4), to commit him to the DJF instead of state prison. (Thomas, at pp. 638-639.) The trial court refused because the prosecutor did not consent to such a disposition, which was then required under section 1170.19, subdivision (a)(4). The trial court also concluded it could not, in any event, order a juvenile disposition because the defendant was ineligible under Welfare and Institutions Code section 1732.6, as referenced in section 1170.19, subdivision (a)(1). (Thomas, at pp. 638-639.) The Supreme Court invalidated on separation of powers grounds that portion of section 1170.19, subdivision (a)(4), requiring prosecutorial consent. (Thomas, at pp. 638-642.) It then examined the second basis for the trial court’s ruling, which is significant to the issue before us.
The Supreme Court held, “the trial court’s discretionary authority under Penal Code section 1170.19, subdivision (a), to commit a minor to the [DJF] applies only when the minor meets the eligibility requirements of Welfare and Institutions Code section 1732.6 .” (Thomas, supra, 35 Cal.4th at pp. 638, 642-645, italics added.) Because the defendant in Thomas was ineligible for a commitment to the [DJF] pursuant to subdivision (a) of Welfare and Institutions Code section 1732.6 based upon his age and the 13-year negotiated sentence, the Supreme Court held the trial court had no discretion under Penal Code section 1170.19, subdivision (a), to commit the defendant to the DJF or order any other less restrictive juvenile disposition. (Thomas, at pp. 642-644.) The court explained: “The offenses listed in Welfare and Institutions Code section 1732.6 are very serious crimes. When a minor is convicted of such an offense, usually the only suitable sentencing options would be [DJF] commitment or sentencing as an adult; a disposition less restrictive than [DJF] commitment, such as a county ranch facility, would not be appropriate to the severity of the offense. Through Proposition 21 the voters of this state took that sentencing choice from the criminal court by barring a [DJF] commitment when the sentence, as in this case, would require the defendant to be confined beyond his 25th birthday. [Citation.] That enactment demonstrates that, in the voters’ view, such minors need more restrictive confinement. For us to conclude that the criminal court lacks discretion to order a [DJF] commitment but retains discretion to order an even less restrictive disposition would conflict with the intent of the voters.” (Id. at p. 644.) The Supreme Court concluded that since the defendant did not meet the eligibility requirements for commitment to the DJF, “the trial court correctly ruled that under Welfare and Institutions Code section 1732.6 it had no authority to commit defendant to the [DJF] or to a less restrictive juvenile disposition.” (Ibid.) The trial court here used precisely the same reasoning and reached exactly the same conclusion in denying defendant’s request for a juvenile disposition.
Because we discern no ambiguity in section 1170.19, subdivision (a), and conclude Thomas is controlling, we reject defendant’s argument based on the “rule of lenity.” “ ‘The rule [of lenity] applies only if the court can do no more than guess what the legislative body intended; there must be an egregious ambiguity and uncertainty to justify invoking the rule.’ [Citation.]... ‘The rule of statutory interpretation that ambiguous penal statutes are construed in favor of defendants is inapplicable unless two reasonable interpretations of the same provision stand in relative equipoise, i.e., that resolution of the statute’s ambiguities in a convincing manner is impracticable.’ [¶] Thus, although true ambiguities are resolved in a defendant’s favor, an appellate court should not strain to interpret a penal statute in defendant’s favor if it can fairly discern a contrary legislative intent.” (People v. Avery, supra, 27 Cal.4th at p. 58.)
The rule of lenity is inapplicable here because no true ambiguity exists. The plain language of Penal Code section 1170.19, subdivision (a), including subparts (1) and (4), Welfare and Institutions Code section 1732.6, and the Supreme Court’s decision in Thomas, provide clear direction as to the meaning and intent of these statutory provisions. In fact, defendant’s proposed construction of these statutes is so strained it is difficult even to articulate. As best we understand it, he suggests that section 1170.19, subdivision (a)(1), and Welfare and Institutions Code section 1732.6 could be construed to apply only to a defendant who has already been sentenced to prison. Under this construction, he argues, the defendant’s ineligibility for a commitment to the DJF under section 1170.19, subdivision (a)(1), and Welfare and Institutions Code section 1732.6, only prevents the court from ordering a defendant who has already been sentenced to prison to be housed instead in the DJF. If sentence has not yet been imposed, he argues, the restrictions of section 1170.19, subdivision (a)(1), and Welfare and Institutions Code section 1732.6 are inapplicable, and therefore the court has unfettered discretion under section 1170.19, subdivision (a)(4), to order a “juvenile disposition... in lieu of a sentence...” even if the defendant is ineligible for commitment to the DJF under section 1170.19, subdivision (a)(1), and Welfare and Institutions Code section 1732.6.
However, as we have discussed, the statutory language does not support this tortured reading of section 1170.19, subdivision (a). It also conflicts with the Supreme Court’s decision in Thomas, holding the trial court does not have the discretion to commit a defendant to the DJF or any less restrictive juvenile disposition if the minor is ineligible for commitment to the DJF under Welfare and Institutions Code section 1732.6. (Thomas, supra, 35 Cal.4th at p. 644.) We find nothing in the Supreme Court’s analysis in Thomas to support defendant’s suggestion that its holding applies only when the defendant has already been sentenced to prison and seeks to be housed instead in the DJF. The defendant in Thomas had not already been sentenced when he asked the court to exercise its discretion under section 1170.19, subdivision (a). He had entered a negotiated plea of guilty with an agreement that he “would not be sentenced to more than 13 years in prison.” (Thomas, supra, 35 Cal.4th at p. 638.) The Supreme Court, in its discussion of the scope of the trial court’s discretionary authority under section 1170.19, subdivision (a), stated “[d]efendant was sentenced” to 13 years. (Thomas, at p. 643.) But, in context, it is clear this was a reference to the sentence the trial court eventually imposed after it denied the defendant’s request for a juvenile disposition in lieu of a sentence.
In short, this is not a case where the relevant statute is susceptible to two equally reasonable interpretations, and we will not strain to create an ambiguity where none otherwise exists. (People v. Avery, supra, 27 Cal.4th at p. 58.) The trial court correctly concluded it had no discretion to order a juvenile disposition in this case.
C. Defendant Waived His Contention That the Trial Court Had Discretion under Section 1385 to Order a Juvenile Disposition
Defendant next argues, even if the trial court cannot order a juvenile disposition pursuant to Penal Code section 1170.19, subdivision (a), and Welfare and Institutions Code section 1732.6, it could, pursuant to Penal Code section 1385, strike the Welfare and Institutions Code section 707, subdivision (d) allegation and transfer the case to juvenile court.
Defendant has waived this argument because he did not ask the trial court to strike the Welfare and Institutions Code section 707, subdivision (d) allegation pursuant to Penal Code section 1385. The letter in mitigation he submitted asked only that the court order a juvenile disposition pursuant to Penal Code section 1170.19. Nor did defendant orally request the trial court to strike the Welfare and Institutions Code section 707, subdivision (d) allegation pursuant to Penal Code section 1385. A defendant who fails to ask the trial court to exercise its discretionary power under section 1385 waives the right to raise the issue on appeal. (People v. Carmony (2004) 33 Cal.4th 367, 375-376, citing People v. Scott (1994) 9 Cal.4th 331, 352-353; see also People v. Lee (2008) 161 Cal.App.4th 124, 129.)
In any event, although the court in Manduley v. Superior Court (2002) 27 Cal.4th 537, 555, footnote 4 (Manduley), expressly stated it was not called upon to decide the question whether a court may strike a Welfare and Institutions Code section 707, subdivision (d) allegation, a few years later, the Supreme Court in Thomas rejected a nearly identical contention: “Defendant insists that notwithstanding Penal Code section 1170.19 and Welfare and Institutions Code section 1732.6, the trial court had discretion under Penal Code section 1385 to commit him to the [DJF] after his guilty plea. We disagree. Penal Code section 1385 allows a trial court, in the interests of justice, to strike individual charges and allegations in a criminal action. [Citations.] It does not permit the court to disregard statutory limits on sentencing for charges and allegations that have not been stricken.” (Thomas, supra, 3 5 Cal.4th at p. 644.)
Defendant argues Thomas is not dispositive because the court only generally held the court had no discretion to order a juvenile disposition pursuant to Penal Code section 1385, but did not address the specific question whether it might have the power to do so by striking a Welfare and Institutions Code section 707, subdivision (d) allegation. We think this is a distinction without a difference and that the reasoning of Thomas would be equally applicable. We will not, in any case, belabor the question whether the holding in Thomas would have been any different had the defendant specifically moved to strike the Welfare and Institutions Code section 707, subdivision (d) allegation, since defendant here never made such a request. Therefore, even if we were to conclude the court does have the power to strike the Welfare and Institutions Code section 707, subdivision (d) allegation pursuant to Penal Code section 1385, defendant would not be entitled to reversal and remand for resentencing, and our opinion on the issue would be purely advisory. (See People v. Slayton (2001) 26 Cal.4th 1076, 1084 [as a general rule, the court will not issue advisory opinions].)
D. Defendant Had No Due Process Right to a Juvenile Disposition
Finally, defendant argues he has a constitutionally protected “liberty interest” in juvenile treatment and therefore we must disregard any express limitations imposed by section 1170.19, subdivision (a)(1), and Welfare and Institutions Code section 1732.6 on the trial court’s discretion to order a juvenile disposition, to avoid violating his supposed federal due process right to have the court consider a juvenile disposition in lieu of a criminal sentence.
This contention is without merit. In Manduley, supra, 27 Cal.4th 537, the Supreme Court rejected the claim minors have a protected liberty interest in being adjudicated as a juvenile. It explained the recognition of such a liberty interest is predicated upon a statutory right to be subject to the jurisdiction of the juvenile court. Welfare and Institutions Code section 707, subdivision (d), eliminated that right as to minors who commit specified crimes under certain circumstances. (Manduley, at p. 562.) The court further stated: “Several amici curiae supporting petitioners contend that juvenile offenders possess a constitutionally protected liberty interest in remaining in the juvenile court system, and that this interest precludes the prosecutor from filing charges against minors in criminal court without first providing notice and a hearing. The authority upon which amici curiae rely, however, found liberty interests arising from statutes that created an expectation that adverse action by the state would occur only upon the occurrence of certain conditions. (E.g., Vitek v. Jones (1980) 445 U.S. 480, 488-491... [transfer of prisoner to mental hospital permitted only after a finding of mental illness].) [Welfare and Institutions Code s]ection 707[, subdivision (d)], in contrast, eliminates any expectation that a minor who commits an offense under the circumstances specified therein will be transferred to criminal court only upon an adverse fitness determination by the court. The predicate for filing charges in criminal court pursuant to [Welfare and Institutions Code] section 707[, subdivision (d)] is a determination by the prosecutor that the circumstances set forth in that statute are present. To the extent this provision creates a protected liberty interest that minors will be subject to the jurisdiction of the criminal court only upon the occurrence of the conditions set forth therein, the statute does require a judicial determination, at the preliminary hearing, ‘that reasonable cause exists to believe that the minor comes within the provisions’ of the statute. ([Welf. & Inst. Code, ]§ 707[, subd. ](d)(4).) Contrary to the contention of amici curiae, such a minor possesses no other protected interest in remaining in the juvenile court system.” (Id. at p. 564, fn. omitted, italics added.) The court concluded “a prosecutor’s decision pursuant to [Welfare and Institutions Code] section 707[, subdivision ](d) to file charges in criminal court does not implicate any protected” liberty interest. (Id. at p. 567.)
For these same reasons, the express statutory limitations imposed by Penal Code section 1170.19, subdivision (a)(1), and Welfare and Institutions Code section 1732.6 on the trial court’s discretion to order a juvenile disposition for certain minors charged directly in criminal court pursuant to Welfare and Institutions Code 707, subdivision (d), do not intrude on any protected liberty interest in a juvenile disposition upon conviction.
DISPOSITION
The judgment is affirmed.
We concur: Marchiano, P. J., Margulies, J.