In re A. G.,

















Filed 7/28/10 Opin. on rehrg.









OPINION
ON REHEARING



CERTIFIED
FOR PUBLICATION



COURT
OF APPEAL, FOURTH APPELLATE DISTRICT



DIVISION
ONE



STATE
OF CALIFORNIA






>

In re A. G., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. A. G., Defendant and Appellant.	D053991 (Super. Ct. No. J220062)

APPEAL from
a judgment of the Superior Court
of San Diego
County, Laura H. Parsky, Judge. Affirmed in part and reversed in part.

Heather L.
Beugen, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G.
Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and
Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.

The People
alleged in an amended petition that A. G., a minor, came within the
juvenile court jurisdiction under Welfare and Institutions Code[1]
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 courtâ€