PEOPLE v. RALPH ET AL TWO CASES

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District Court of Appeal, Second District, Division 1, California.

PEOPLE v. RALPH ET AL. (TWO CASES).

Cr. 3724, 3725.

Decided: December 14, 1943

Frederic H. Vercoe, Public Defender, and William B. Neeley, Deputy Public Defender, both of Los Angeles, for appellant Raymond James Cantlon. Gladys Towles Root, of Los Angeles, for appellants Edsel Gray Ralph and Clyde Dempsey Chandler. Robert W. Kenny, Atty. Gen., and T. G. Negrich, Deputy Atty. Gen., for respondent.

Upon their pleas of guilty appellants were convicted of robbery in the first degree. Appellants are all under the age of twenty–three years; and a motion was made on behalf of each appellant that his case be certified to the Youth Correction Authority, now known as the Youth Authority (Stats. 1943, ch. 690, p. 2442), because of the provisions of the Youth Correction Authority Act (Stats.1941, ch. 937, p. 2522), now known as the Youth Authority Act (Stats.1943, supra), being Division 2.5, comprising Chapter I, Sections 1700 to 1783, inclusive, of the Welfare and Institutions Code (Stats.1941, supra). The motions of appellants were denied. All of the appellants admitted being armed with a deadly weapon at the time of the commission of the offense charged. It has been stipulated that the decision upon the appeals herein may be made upon the briefs filed on behalf of appellant Cantlon. Appellants Ralph and Chandler gave oral notice of appeal from the order denying the motion to be certified to the Youth Correction Authority. These defendants later filed a written notice of appeal from the order denying them a new trial and from the judgments of conviction. Appellant Cantlon appeals from the judgment of conviction. However, the appeal in each instance is based upon the sole ground that the refusal of the trial court to commit the defendant to the Youth Correction Authority was error.

Appellants contend that under the provisions of the Youth Authority Act the trial court upon conviction was bound to commit appellants to the Youth Authority. Section 1731 of the act in question reads in part as follows: “When in any criminal proceeding in a court of this State a person has been convicted of a public offense for which the court has power under this chapter to commit to the Authority, the court shall determine whether the person was less than 23 years of age at the time of the apprehension from which the criminal proceeding resulted.” Section 1731.5 of the act provides: “After certification to the Governor as provided in this article and until January 1, 1944, a court shall commit to the Authority any person convicted of a public offense whom the Authority believes can be materially benefited by the procedure herein provided for, and for whose care and maintenance there exists, in the opinion of the Authority, proper and adequate facilities, and who (a) Is found to be less than 23 years of age at the time of apprehension (b) Is not sentenced to death, imprisonment for life, imprisonment for not more than 90 days, or the payment of a fine.” Section 1732 of the act provides that except as otherwise provided in this chapter the court shall commit to the Authority every person convicted of a public offense after January 1, 1944, who is found to be less than 23 years of age at the time of apprehension, and is not sentenced as set forth in (b) of section 1731.5, above quoted, and who is not granted probation. At the time of the conviction of appellants the Youth Authority had already certified to the Governor that it was ready for the proper discharge of its duties and functions, as provided in subdivision (a) of section 1730 of the act; and no contention to the contrary is here made. The proceedings herein occurred before the effective date of the amendments to the act in question in 1943. Appellants' position is based upon the language of section 1731.5, above quoted, wherein it is provided that the court “shall” commit to the Youth Authority any person convicted of a public offense, who otherwise meets the conditions for commitment. Appellants argue that the use of the word “shall” makes the provisions of the section mandatory upon the court; and that the trial court has no discretion in the matter but must commit to the Authority every person meeting the requisite conditions.

Respondent does not dispute this contention, but claims that, having been adjudged guilty of robbery in the first degree, which under section 213 of the Penal Code is punishable by imprisonment in the state prison for not less than five years, no maximum punishment being provided, appellants were sentenced for life and, consequently, their case comes within the exception provided by subdivision (b) of section 1731.5 of the Youth Authority Act. Appellants were actually sentenced to imprisonment in the state prison “for the term prescribed by law”, which sentence is in accord with the provisions of section 1168 of the Penal Code, which reads: “Every person convicted of a public offense, for which imprisonment in any reformatory or State prison is now prescribed by law shall, unless such convicted person be placed on probation, a new trial granted, or the imposing of sentence suspended, be sentenced to be imprisoned in a State prison, but the court in imposing the sentence shall not fix the term or duration of the period of imprisonment.” Respondent's contention that appellants were sentenced for life is based upon the authorities which hold that under an indeterminate sentence law a statute which prescribes a minimum sentence, with no maximum, is in law a life sentence until and unless a court or executive board charged with the duty of fixing prison terms remits a portion of the life term. People v. Jones, 6 Cal.2d 554, 59 P.2d 89; People v. McNabb, 3 Cal.2d 441, 45 P.2d 334. In reply to respondent's contention appellants state that the exception to the provisions of section 1731.5 of the Youth Authority Act only refers to those cases wherein the court has actually sentenced the defendant to life imprisonment. Appellants argue that there is a distinction between the “legal effect” of a sentence and an actual sentence. In this connection appellants state: “Persons convicted of burglary of the first degree, robbery of either the first or second degree * * * and other offenses which prescribe no maximum sentence, and who are sentenced to state prison are not sentenced for life. They are sentenced to the term prescribed by law and the legal effect of such a sentence is to place them under the control of the Parole Board for the possible maximum term, to wit, life imprisonment. There has, however, been no sentence to life imprisonment and sentence is an essential element of the exception stated in section 1732.” (Italics included.)

The question of the effect of an indeterminate sentence, as provided by section 1168 of the Penal Code, was settled in this state by In re Lee, 1918, 177 Cal. 690, 171 P. 958, 959. It is there stated: “In determining this question and the other questions raised by the petitioner it is necessary to consider the nature and purposes of the indeterminate sentence law. It is generally recognized by the courts and by modern penologists that the purpose of the indeterminate sentence law, like other modern laws in relation to the administration of the criminal law, is to mitigate the punishment which would otherwise be imposed upon the offender. These laws place emphasis upon the reformation of the offender. They seek to make the punishment fit the criminal rather than the crime. They endeavor to put before the prisoner great incentive to well–doing in order that his will to do well should be strengthened and confirmed by the habit of well–doing. Instead of trying to break the will of the offender and make him submissive, the purpose is to strengthen his will to do right and lessen his temptation to do wrong. If the purpose of the law is to mitigate the punishment, the law is not ex post facto, unless it can clearly be seen, that notwithstanding the beneficence of the law it may result in the individual case in depriving the prisoner of some well–defined right. It has uniformly been held that the indeterminate sentence is in legal effect a sentence for the maximum term. It is on this basis that such sentences have been held to be certain and definite, and therefore not void for uncertainty.” In passing, it should be pointed out that the reason for holding an indeterminate sentence to be a sentence for the maximum term was obviously to give validity to section 1168 and to avoid the objection to its validity on the ground of uncertainty.

The purpose of the Youth Authority Act is expressly set forth in section 1700 of the Welfare and Institutions Code (Stats. 1941, supra). That section reads as follows: “The purpose of this chapter is to protect 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.” With regard to the purpose of this act the Supreme Court has recently stated, in the case of In re Herrera, 143 P.2d 345, 346, upholding the constitutionality of the Youth Authority Act: “By establishing the Authority as a central state agency to cooperate with hitherto uncoordinated public and private agencies in the reformation of socially dangerous persons, the act provides for a unified program of correctional treatment.”

The purpose and intent of the legislature in creating the Youth Authority has thus been clearly expressed; and it is not within the province of the courts to question the feasibility or practicability of the measure. It is rather the duty of the courts to give effect to the expressed purpose and intent in so far as it is legally possible so to do. It is at once apparent that the Youth Authority Act is an extension of the same principles and policies which motivated the adoption of the indeterminate sentence (section 1168, Pen. Code) as a measure of penal reform in the first instance.

In that connection, there is but one reasonable interpretation which can be given to the language of subdivision (b) of section 1731.5, supra, excluding from the provisions of the Youth Authority Act a person “sentenced to * * * imprisonment for life”. To attempt to distinguish between the “legal effect of a sentence” and an “actual sentence” is to draw a distinction without a difference. It is the legal effect of a sentence pronounced by the court which gives it meaning and significance. The fallacy of appellants' reasoning in this respect is well illustrated by a quotation from the briefs, for example: “With respect to the distinction between ‘legal effect’ of a sentence and a ‘sentence’ may we suggest that if a defendant 95 years of age were sentenced to state prison for the offense of grand theft with a prior felony (minimum of five years and maximum of ten years) it might well be said that the legal effect of the decision was life imprisonment though certainly there was no such sentence.” The reasoning here employed results from a confusion of the “legal effect” of a sentence with the actual result of such sentence. The legal effect of an indeterminate sentence by the court for an offense wherein the prescribed punishment is from five to ten years imprisonment is to sentence the defendant to the maximum term of ten years. In re Lee, supra. The practical or actual result of such a sentence, imposed upon a 95 year old defendant, might well be the incarceration of the defendant for the rest of his natural life. The age of a defendant might well determine the actual result of the sentence imposed but it can have no bearing upon the legal effect of the sentence.

The distinction between the sentence imposed by the court and the term of imprisonment as fixed by the board of prison terms and paroles may be illustrated from the following quotation from People v. Hayes, 9 Cal.App.2d 157, at page 160, 49 P.2d 288, at page 289: “While it is true, as said in the cases of In re Lee, [supra], In re Wignall, 193 Cal. 387, 224 P. 452, and In re Daniels, 106 Cal.App. 43, 288 P. 1109, that when a sentence is imposed under the Indeterminate Sentence Law (section 1168, Pen.Code), the term of imprisonment is for the maximum period provided by law as the penalty for the offense in question, this is true only to the extent that the term of imprisonment is the maximum provided by law until action is taken by the board of prison terms and paroles, which may and is required to fix the period of imprisonment at a period between the maximum and minimum penalties, and when so fixed the term of imprisonment is the period fixed by order of that board.”

The distinction is thus made clear between the sentence of imprisonment imposed by the court and the term of imprisonment fixed by the board of prison terms and paroles. Subdivision (b) of section 1731.5, supra, speaks of a sentence to life imprisonment. As has already been pointed out, the sentence imposed by the court upon appellants was in legal effect one to imprisonment for life. At the time of pronouncement of sentence the board of prison terms and paroles had not of course fixed appellants' terms; and at such time it would not be possible to determine what the respective terms of imprisonment would actually be. It should be pointed out that at the time sentence is pronounced by the court it is never possible to determine what the actual term of imprisonment will be under the provisions of section 1168 of the Penal Code, except in those cases where a maximum term of imprisonment has alone been prescribed by law. See In re Heath, 49 Cal.App. 657, 194 P. 68; Ex parte Heath, 193 Cal. 192, 223 P. 546. If the legislature had intended that the exception noted under subdivision (b) of section 1731.5, supra, was to apply strictly to offenses punishable by life imprisonment only, it is reasonable, in view of the state of the law with regard to indeterminate sentences, to assume that the legislature would have been thus specific. In the absence of any such qualification as to the exception in question, the only reasonable construction to place upon subdivision (b) of section 1731.5, supra, is that whereby all persons whose sentence by the court is in legal effect a sentence to imprisonment for life are excluded from the provisions of the Youth Authority Act. It may be stated that offenses for which a minimum term only has been prescribed, and for which the maximum punishment is therefore life imprisonment, are all grave offenses.

The trial court was therefore correct in refusing to certify appellants to the Youth Authority; and the respective judgments and orders are, and each of them is affirmed.

DORAN, Justice.

YORK, P. J., and WHITE, J., concur.