Opinion
Cr. 2257
5-1-1951
Ex parte McINTURFF.
Edmund G. Brown, Atty. Gen., Gail A. Strader, Deputy Atty. Gen., for appellant. O. A. Kistle, Public Defender, Thomas W. Olson, Jr., Asst. Public Defender, Sacramento, for respondent.
May 1, 1951.
Hearing Granted May 31, 1951. *
Edmund G. Brown, Atty. Gen., Gail A. Strader, Deputy Atty. Gen., for appellant.
O. A. Kistle, Public Defender, Thomas W. Olson, Jr., Asst. Public Defender, Sacramento, for respondent.
ADAMS, Presiding Justice.
This is an appeal by the People from an order of the Superior Court of Sacramento County, in a habeas corpus proceeding, discharging McInturff from his incarceration in the state prison at Represa.
The facts are not disputed. On March 22, 1943, McInturff, then eighteen years of age, entered a plea of guilty to an information filed in the Los Angeles County Superior Court charging him with robbery, which the court found to be of the first degree. The defendant was represented by a deputy public defender who suggested to the court that owing to defendant's youth he should be committed to the Youth Authority, in accordance with the provisions of Section 1731.5 of the Welfare and Institutions Code. The court declined to so order, and sentenced defendant to state prison for the term prescribed by law, to wit: not less than five years. Pen.Code, sec. 213. No appeal or other action to effect his release was taken by defendant until he filed his petition for a writ of habeas corpus on or about July 21, 1950. On the meantime he had reached and passed his 26th birthday.
That the trial court of Los Angeles County erred in refusing to commit defendant to the Youth Authority is clear from the provisions of section 1731.5 of the Welfare and Institutions Code which were mandatory. See People v. Ralph, 24 Cal.2d 575, 577, 150 P.2d 401, In re Rugland, 80 Cal.App.2d 316, 317, 181 P.2d 923, and People v. Walker, 82 Cal.App.2d 196, 200, 185 P.2d 842. Had defendant been committed to the Youth Authority he would have been discharged on arriving at the age of 25 years unless that Authority had filed a petition to the trial court alleging that, in its opinion, his unrestrained freedom would be dangerous to the public. See sections 1771 and 1780 of the Welfare and Institutions Code.
Since petitioner was not so committed and he is now over the age of 25 years, the Youth Authority has no jurisdiction over him. To send him back to the Los Angeles Superior Court to have it correct its error and commit defendant to the Youth Authority would therefore be an idle act; and the original commitment to state prison having been invalid, his further restraint by the institution is likewise invalid. It follows that the Superior Court of Sacramento County properly ordered his discharge from custody, and its order so doing is hereby affirmed.
VAN DYKE, J., and DEIRUP, Justice pro tem., concur. --------------- * Subsequent opinion 236 P.2d 574.