Opinion
Hearing Granted March 16, 1971.
Opinion on pages 15 to 22 omitted
HEARING GRANTED
See 5 Cal.3d 330.
O. D. McClanahan, Huntington Beach, for appellant under appointment by the Court of Appeal.
[91 Cal.Rptr. 823] Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Beverly K. Falk, Deputy Atty. Gen., for respondent.
LILLIE, Associate Justice.
Defendant was charged with two counts of forcible rape upon a female under the age of 18 (§ 261, subd. 3, Pen.Code); at the trial he pleaded guilty to two counts of statutory rape (§ 261, subd. 1, Pen.Code), a lesser but necessarily included offense. On February 23, 1968, he was committed to the California Youth Authority on each count, the commitments to run concurrently. In December 1969 the Youth Authority rejected defendant and he was returned to the superior court for sentence pursuant to section 1737.1, Welfare and Institutions Code. After a hearing at which defendant testified, probation was denied and he was sentenced to the state prison on each court, the sentences to run concurrently; under section 1737.1 he received credit for all time spent under Youth Authority control. Defendant appeals from the judgment.
Appellant advances the position that the superior court lacked jurisdiction to sentence him to the state prison upon his return by the Youth Authority under section 1737.1, Welfare and Institutions Code, because the offense of which he was convicted is punishable as either a felony or misdemeanor (§ 264, Pen.Code) and when he was committed to the Youth Authority the crime by operation of section 17, subdivision (b)(2) became a misdemeanor for all purposes. Also he urges this result under the well-established rule that in felony-misdemeanor cases under Penal Code, section 17, the punishment ordered is the test as to whether it is a felony or misdemeanor conviction (People v. Samarjian, 240 Cal.App.2d 13, 23, 49 Cal.Rptr. 180) and his theory that sentence was imposed by his commitment to the Youth Authority.
Section 1737.1, Welfare and Institutions Code, provides: 'Whenever any person who has been charged with or convicted of a public offense and committed to the authority appears to the authority, either at the time of his presentation or after having become an inmate of any institution or facility subject to the jurisdiction of the authority, to be an improper person to be retained in any such institution or facility, or to be so incorrigible or so incapable of reformation under the discipline of the authority as to render his detention detrimental to the interests of the authority and the other persons committed thereto, the authority may return him to the committing court. In the case of a person convicted of a public offense, said court may then commit him to a state prison or sentence him to a county jail as provided by law for punishment of the offense of which he was convicted. * * *'
Section 17, subdivison (b) provides: 'When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:
For this latter argument there is neither legal nor factual support. First, no punishment was ordered when defendant was committed to the Youth Authority (People v. Mack, 2 Cal.App.3d 724, 729-730, 82 Cal.Rptr. 771; People v. Zaccaria, 216 Cal.App.2d 787, 791, 31 Cal.Rptr. 383), nor did his commitment constitute 'a sentence to a state prison for punishment of a criminal conviction. (See In re Keller, 232 Cal.App.2d 520, 524-526, 42 Cal.Rptr. 921.)' (People v. Wilkins, 251 Cal.App.2d 823, 829, 60 Cal.Rptr. 49, 53.) Second, irrespective of the language used by the trial judge in his oral commitment, the record shows that in fact no sentence was imposed; the formal commitment of February 23, 1968, under which defendant was accepted by the Authority recites only 'IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that said defendant be committed to the Youth Authority of the State of California for the term prescribed by law. Counts 1 and 2 are ordered to run CONCURRENTLY with each other.' In an obvious effort to [91 Cal.Rptr. 824] afford defendant the advantage of rehabilitative confinement, the judge properly used the alternative procedure committing him to the Youth Authority without pronouncing judgment and sentence. (People v. Stevenson, 275 Cal.App.2d 645, 651, 80 Cal.Rptr. 392.)
Proceeding to the main issue, on his plea of guilty to two counts of statutory rape defendant stood convicted of two felonies for which the court in its discretion then could have sentenced him to imprisonment either in the state prison or the county jail. (§ 264 Pen.Code.) Inasmuch as the court did not sentence defendant at the time it committed him to the Youth Authority, the conviction remained a felony. (People v. Banks, 53 Cal.2d 370, 381-382, 385, fn. 8, 1 Cal.Rptr. 669, 348 P.2d 102; People v. Bozigian, 270 Cal.App.2d 373, 379, 75 Cal.Rptr. 876; People v. Washington, 243 Cal.App.2d 681, 687-688, 52 Cal.Rptr. 668.) Defendant was under the control of the Youth Authority from February 1968 to December 1969, and it is apparent from his own testimony that because of his behavior under its discipline, the Authority believed him to be 'incorrigible or incapable of reformation' and, exercising the discretion conferred upon it by statute (People v. Ralph, 24 Cal.2d 575, 583, 150 P.2d 401; In re Herrera, 23 Cal.2d 206, 211,143 P.2d 345), returned him to the court for sentence. People v. Stevenson 275 Cal.App.2d 645, 652, 80 Cal.Rptr. 392, and People v. Woolbert, 232 Cal.App.2d 544, 547, 42 Cal.Rptr. 919 (which differ from the instant case only in that defendant had been convicted of one or more felonies none of which could upon sentence be treated as a misdemeanor) hold that 'The procedure outlined above was adequate under Welf. & Inst.Code, § 1737.1 to warrant appellant's return to the jurisdiction of the court, and the court was by this procedure reinvested with the same power to pronounce judgment for conviction * * * as it had in the first instance.' (232 Cal.App.2d at p. 547, 42 Cal.Rptr. at p. 921.) Here while in its discretion the court 'in the first instance' could have treated the felony of which defendant was convicted as a misdemeanor by imposition of a county jail sentence, it nevertheless had the power to sentence him thereon to the state prison instead of committing him to the Youth Authority. Accordingly upon his return the court, 'reinvested' with that same power, treated the offense as a felony and imposed a state prison sentence. It is clear that the court had the power to do this under section 1737.1, Welfare and Institutions Code, unless we accept appellant's theory that when the court commits a defendant convicted of a felony punishable as a felony or misdemeanor to the Youth Authority, section 17, subdivision (b)(2) operates to reduce the offense to a misdemeanor under all circumstances. Thus, is a defendant, convicted of an offense which may be either a felony or misdemeanor depending on punishment, to whom the trial judge gives the benefit of rehabilitative treatment under a Youth Authority commitment instead of the state prison but who subsequently is returned by the Authority to the court for sentence because he is incorrigible or incapable of reformation under its discipline, entitled to the advantage of a misdemeanor classification solely by virtue of the commitment? An affirmative holding would require a determination that the Legislature intended that section 17, subdivision (b)(2) limit the power of the trial court under section 1737.1. Such a determination would run contra to the very purpose of both the Youth Authority Act and section 17, subdivision (b)(2), Penal Code.
First, it appears from section 6001, Penal Code, 'The establishment, organization, jurisdiction, powers, duties, responsibilities, and functions of the Youth Authority are continued as provided in the Youth Authority Act (Chapter 1, Division 2.5, of the Welfare and Institutions Code),' that the Legislature had no intention of permitting Penal Code provisions to affect the procedures utilized under the Youth Authority Act. According to section 1700, Welfare and Institutions Code, 'The purpose of this chapter is to protect [91 Cal.Rptr. 825] society more effectively by substituting for retributive punishment methods of training and treatment directed toward the correction and rehabilitation of young persons found guilty of public offenses. To this end it is the intent of the Legislature that the chapter be liberally interpreted in conformity with its declared purpose.' (People v. Scherbing, 93 Cal.App.2d 736, 740, 209 P.2d 796.) 'The Act is replete with provisions of rehabilitation, such as those relating to work to be done by persons committed (§ 1760.6), forestry camps (§ 1760.4), and various modes of correction and treatment (§ 1768).' (People v. Zaccaria, 216 Cal.App.2d 787, 791, 31 Cal.Rptr. 383, 386.)' (People v. Mack, 2 Cal.App.3d 724, 730, 82 Cal.Rptr. 771, 774.) It gives broad discretion and flexible powers to the Authority in its method of training and treatment of the youthful offender and provides for his discharge 'as soon as in its opinion there is reasonable probability that he can be given full liberty without danger to the public.' (§ 1765, Welf. & Inst.Code.) 'Only when the case is on that, in the opinion of the Authority, is completely hopeless, would resort be had to § 1737.1. That is so because if the Authority returns the offender to the Court, the offender would then have to serve the minimum term fixed for the offense and could not be discharged or placed under less stringent control.' (People v. Scherbing, 93 Cal.App.2d 736, 741, 209 P.2d 796, 799.) It is this 'completely hopeless' case with which we are here confronted. Thus, if upon his return to the court it is deprived of the power it had in the first instance to punish such a defendant under section 1737.1 for the offense of which he was convicted, the purpose of the Act and the effectiveness of its rehabilitative programs would be threatened. Appellant's interpretation of section 17, subdivision (b)(2), would make it possible for one convicted of a felony punishable in the court's discretion as a misdemeanor to be confined for no more than one year plus the short time required for him to misbehave while under the control of the Authority and be returned by it and processed through the court, and permit such a defendant, who had been given the advantage of treatment in a rehabilitative facility instead of the state prison, to accomplish his release from the Authority immediately after his commitment by intentionally misconducting himself so as to force it to return him to the court where then he could only be sentenced to the county jail thus, by his own conduct avoiding a felony sentence. It is absurd to assume that the Legislature under these circumstances intended such a defendant to be so rewarded. A restriction on the court's power to punish defendant for a felony could only encourage in him conduct while under Authority control inimical to its program and the purpose of the Act, and discourage trial courts from using the Youth Authority facilities to benefit those youthful offenders whom they have reason to believe are qualified and deserving of rehabilitative treatment.
While section 17, subdivision (b)(2) provides that a crime punishable in the discretion of the court by imprisonment in the state prison or county jail is a misdemeanor for all purposes 'when' the court commits defendant to the Youth Authority we are not prepared to give this the literal construction that would permit the misdemeanor classification to remain effective if later he is returned to the court because of his own misconduct. It seems to us that subdivision (2) was meant to apply to the situation in which a defendant through his attitude and behavior made himself amenable to Authority discipline, benefited from the treatment, satisfactorily completed the rehabilitation program and was discharged as no longer being a 'danger to the public.' (§ 1765, Welf. & Inst.Code.) Before section 17 was amended in 1957 a felony with misdemeanor-felony punishment stood as a felony even after defendant's commitment to and subsequent discharge by the Youth Authority (see People v. Williams, 27 Cal.2d 220, 228-231, 163 P.2d 692; People v. Zaccaria, 216 Cal.App.2d 787, 789-790 31 Cal.Rptr. 383), unless under certain [91 Cal.Rptr. 826] circumstances the court ordered the reduction to a misdemeanor. Sometimes the felony conviction remained against a deserving person because he neglected to obtain a court order (People v. Fork, 233 Cal.App.2d 725, 732-733, 43 Cal.Rptr. 804; People v. Ramsey, 202 Cal.App.2d 856, 858-859, 21 Cal.Rptr. 406); in 1959 section 17 was amended to eliminate this. Subsequent amendments resulted in provisions the tenor of which is that reduction of an offense from a felony to a misdemeanor is a matter of reward for good behavior. Keeping in mind the rule of construction of penal provisions (§ 4, Pen.Code; People v. Sciortino, 175 Cal.App.2d Supp. 905, 908-909, 345 P.2d 594), viewing the statute with reference to its purpose and the evils to be cured thereby and in relation to others on the same subject (Stafford v. Los Angeles, etc., Retirement Board, 42 Cal.2d 795, 799, 270 P.2d 12; People v. Darling, 230 Cal.App.2d 615, 620, 41 Cal.Rptr. 219) and giving both statutes a reasonable interpretation to avoid an absurd result (People v. Darling, 230 Cal.App.2d 615, 620, 41 Cal.Rptr. 219), we think it obvious that the Legislature sought to protect the youthful offender who had successfully rehabilitated himself under commitment to the Youth Authority and reward him for good behavior by reducing his felony to a misdemeanor without destroying the court's power under section 1737.1, Welfare and Institutions Code, a statute designed to deal with those who could or would not be rehabilitated.
The amendment provided 'Where a court commits a defendant to the Youth Authority upon conviction of a crime punishable, in the discretion of the court, by imprisonment in the state prison or fine or imprisonment in a county jail, the crime shall be deemed a misdemeanor.'
Appellant argues that if the trial court's 'new and novel' interpretation of section 17, subdivision (b)(2), Penal Code, and section 1737.1, Welfare and Institutions Code, is upheld he has been denied due process because he was not given fair warning of the consequences of his conduct while under Youth Authority control. This cannot be classified as a 'new and novel' interpretation of the code sections involved merely because the matter previously had not been comprehensively discussed by our courts. And if he now claims he was not placed on notice that his misconduct under commitment to the Youth Authority might result in his imprisonment in the state prison upon his return to the court, he is conceding that he relied upon a statutory interpretation under which he could obtain his release from custody by misbehavior. Also without merit is his contention that section 1737.1 as amended in 1969 is ex post facto as to him. The amendment, the basis for his receiving credit against his prison term for time spent at the Youth Authority, was obviously advantageous to him.
'* * * The maximum term of imprisonment for a person committed to a state prison under this section shall be a period equal to the maximum term prescribed by law for the offense of which he was convicted less the period during which he was under the control of the Youth Authority. The Adult Authority may, after seeking the advice of the Youth Authority, allow any such person time credit reductions from his term of confinement according to the table set forth in Section 2920 of the Penal Code for the time during which such person was under the control of the Youth Authority. * * *'
Finally, appellant's claim that he was denied the right to effective counsel because the deputy public defender did not argue the foregoing legal issues but instead addressed to the judge a factual argument in support of probation, is without substance. First, it appears that some discussion of the legal issue subsequently commented on by the judge in open court previously may have taken place in chambers; second, the judge's comment required no argument on the legal issue by counsel; third, no crucial defense was withdrawn by counsel's conduct and it is readily apparent that the hearing was not reduced to a farce or sham; and fourth, [91 Cal.Rptr. 827] no doubt recognizing that the judge would not change his opinion that he had the power to sentence defendant on a felony inasmuch as he announced there was no legal cause why judgment should not be pronounced, counsel made a tactical decision to benefit his client, if he could, by a factual argument for probation.
The judgment is affirmed.
WOOD, P. J., and GUSTAFSON, J., concur.
'(1) * * *
'(2) When the court commits the defendant to the Youth Authority * * *'