EX PARTE HERRERA ET AL v. <<

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District Court of Appeal, Second District, Division 3, California.

EX PARTE HERRERA ET AL.

Cr. 3675.

Decided: April 30, 1943

David C. Marcus, of Los Angeles, for petitioners. Robert W. Kenny, Atty.Gen., and Lewis Drucker and Robert A. Neeb, Jr., Deputy Attys. Gen., for respondent.

The petitioners were charged, in two separate informations filed in the Superior Court of Los Angeles County, with the crime of assault with a deadly weapon. Petitioners Sandoval and Loya entered pleas of “guilty of simple assault,” a misdemeanor. Petitioner Herrera pleaded “not guilty,” and after trial was found guilty of the offense charged. Each of them was committed to the Youth Correction Authority (hereinafter referred to by that name or as “the Authority”), with its consent, the court finding in the commitments that each was under the age of 23 years at the time of his apprehension. Each petitioner seeks by this writ of habeas corpus to obtain his discharge from the custody of the Authority on the ground that the statute purporting to authorize his commitment to it is unconstitutional, for many reasons, and void, and that it has not been complied with in the making of the commitments.

As to petitioners Sandoval and Loya it appears from the return to the writ, and is not disputed, that after the writ was issued but before the return each of them was paroled by the Authority and released from custody. By the terms of this order of parole each was “placed on parole” and “committed to the care and custody of the said Parole Officer for placement, subject to the visitation of the said Parole Officer,” and was ordered to report to the Parole Officer as often as required by him. This order is the same in effect as the orders of parole usually made by prison and other such authorities under statutes authorizing parole. In such cases, the courts have uniformly held that the person on parole is not in custody in such sense as to entitle him to a writ of habeas corpus. Van Meter v. Sanford, 5 Cir., 1938, 99 F.2d 511; Ex parte Cindle, 1941, 71 Okl.Cr.R. 135, 109 P.2d 519; Ex parte Kirk, 1919, 16 Okl.Cr.R. 722, 185 P. 706; Ex parte Davis, 1915, 11 Okl.Cr.R. 403, 146 P. 1085; Ex parte Dumas, 1939, 137 Tex.Cr.R. 524, 132 S.W.2d 883; Ex parte Cole, 1883, 14 Tex.App. 579. While this precise question seems not to have been passed on in this state, it has been held that “* * * the writ of habeas corpus does not lie where the petitioner, or person on whose behalf the petition is filed, is not imprisoned, or under actual restraint,” and that for this reason one who has given bail on a criminal charge is not entitled to the benefit of the writ. In re Gilkey, 1927, 85 Cal.App. 484, 259 P. 766, 767; see note 14 A.L.R. 344, where many cases to the same effect are collected. The principle is the same here. The questions raised by the writ as to Sandoval and Loya have become moot since it was issued, and the petition must be dismissed as to them. In re Cothran, 1937, 24 Cal.App.2d 65, 74 P.2d 325.

But petitioner Herrera remains in actual custody; hence we must pass upon the legality of his detention and for that purpose must examine the statute in question. We have come to the conclusion, for reasons hereinafter to be stated, that the statute was not followed in the commitment of petitioner to the Authority, and therefore he must be discharged from its custody and remanded to that of the Sheriff; but since the reasons for this conclusion are not such as to prevent the court from again committing him to the Authority, if the Act is valid, we proceed to consider and express our opinion on the points made against its validity, for the guidance of the court in further proceedings. This statute, known as the “Youth Correction Authority Act,” was passed by the California Legislature in 1941, Stats. 1941, Chap. 937, pp. 2522 to 2533, and adds sections 1700 to 1783, inclusive, constituting Division 2.5, Chapter 1, to the Welfare and Institutions Code. Unless otherwise stated, section numbers hereinafter set forth refer to sections thus added to that code. This statute was originally drafted by the American Law Institute as a model act to be submitted to all the states for adoption. As far as we are informed, it has not, as yet, been adopted in any other state, so no precedents have arisen directly upon it. It has, however, been the subject of much public discussion and some of its provisions have been severely criticised, on constitutional and other grounds. See Vol.. IX, No. 4, pp. 579–759, of Law and Contemporary Problems, published by Duke University School of Law, which is devoted entirely to discussion of this act and the circumstances giving rise to it. In the course of passage of the California Act through our legislature the model act was altered in some respects, but the general plan and purpose remain the same.

Our act creates a Youth Correction Authority, consisting of three members to be appointed by the Governor, “whose function is to provide and administer preventive and corrective training and treatment for persons committed to it as hereinafter provided.” § 1710. No person may be committed to the Authority until it has made a certificate to the Governor of its readiness to act, the precise terms of which will be considered later, § 1730, nor thereafter, until January 1, 1944, without the approval of the Authority. § 1731.5. With such approval, or without it after January 1, 1944, the court in which any person is convicted of a public offense, shall commit such person to the Authority if he is less than 23 years of age at the time of apprehension, is not sentenced to death, imprisonment for life, imprisonment for not more than 90 days or the payment of a fine, and (after January 1, 1944) is not granted probation. §§ 1731.5, 1732.

The Authority, to the extent that funds are available, may “establish and operate a treatment and training service and such other services as are proper for the discharge of its duties; * * * employ and discharge all such persons as may be needed for the proper execution of its duties.” § 1752. It may also “make use of law enforcement, detention, probation, parole, medical, educational, correctional, segregative and other facilities, institutions and agencies, whether public or private, within the State.” § 1753. Public institutions and agencies are required to accept and care for persons sent to them by the Authority as if they had been committed by a court of criminal jurisdiction. § 1755. The Authority is also authorized, when necessary and when funds are available, to establish and operate places for detention, examination, study and confinement of persons committed to it, educational institutions, hospitals, and other correctional, segregative or supervisional agencies and facilities for performing its duties. § 1760. It is required to examine and study all persons committed to it and the circumstances of their lives and crimes, and to repeat such examination at least once a year. §§ 1761, 1762.

The Authority has wide discretion in its treatment of a person committed to it. “(a) When a person has been committed to the Authority it may (1) Permit him his liberty under supervision and upon such conditions as it believes conducive to law–abiding conduct; (2) Order his confinement under such conditions as it believes best designed for the protection of the public; (3) Order reconfinement or renewed release under supervision as often as conditions indicate to be desirable; (4) Revoke or modify any order except an order of discharge as often as conditions indicate to be desirable; (5) Discharge him from its control when it is satisfied that such discharge is consistent with the protection of the public.” § 1766. “As a means of correcting the socially harmful tendencies of a person committed to it, the Authority may (a) Require participation by him in vocational, physical, educational and corrective training and activities; (b) Require such conduct and modes of life as seem best adapted to fit him for return to full liberty without danger to the public welfare; (c) Make use of other methods of treatment conducive to the correction of the person and to the prevention of future public offenses by him.” § 1768.

The matter of discharge is also fully covered. “(a) Except as otherwise provided in this chapter, the Authority shall keep under continued study a person in its control and shall retain him, subject to the limitations of this chapter, under supervision and control so long as in its judgment such control is necessary for the protection of the public. (b) The Authority shall discharge such person as soon as in its opinion there is reasonable probability that he can be given full liberty without danger to the public.” § 1765. The generality of these provisions is cut down by age and time limits contained in sections 1769, 1770, and 1771, which are hereinafter considered. The provision contained in the model act, by which on application to and order of the court, the Authority could keep a person in its custody for further periods, to which no limit was fixed, was omitted from the California statute. Under our statute the custody of the Authority cannot extend after the person committed has reached the age of 25, even in case of a felony conviction, except during the pendency of a petition for a court hearing under sections 1780–1782 hereinafter considered.

In passing on this statute, we are not concerned with the wisdom or expediency of any of its provisions, such matters being solely of legislative cognizance. Davis v. County of Los Angeles, 1938, 12 Cal.2d 412, 420, 84 P.2d 1034; Bodinson Mfg. Co. v. California, Employment Comm., 1941, 17 Cal.2d 321, 325, 109 P.2d 935.

Further, we are not required to and should not decide upon the validity of every provision in the act. “If the different parts of the statute are severable and independent of each other, and if the manifest purpose of the legislature can be carried into effect by upholding and enforcing those provisions within its constitutional power, that purpose will not be defeated by the inclusion of an unconstitutional provision subsidiary in its nature.” 5 Cal.Jur. 645, 646; Hale v. McGettigan, 1896, 114 Cal. 112, 119, 45 P. 1049; People v. Lewis, 1939, 13 Cal.2d 280, 284, 89 P.2d 388; In re Estate of Childs, 1941, 18 Cal.2d 237, 245, 115 P.2d 432, 136 A.L.R. 333. In addition to this well recognized rule, we have in the statute the provision, now quite common, that “if any article, section, subdivision, sentence, clause, or phrase”, is held unconstitutional, such decision shall not affect the validity of the remaining portions of the act, and the declaration that the Legislature would have passed each “phrase” etc., irrespective of the fact that any other part of the act be declared unconstitutional. § 3 of the act amending the Welfare and Institutions Code. While we can hardly give literal effect to this provision as written, it does make plain the legislative intent, where it might otherwise be in doubt, and thus aids in the application of the rule just stated. Bacon Service Corp. v. Huss, 1926, 199 Cal. 21, 34, 35, 248 P. 235. The present case is subject to a particular application of the foregoing rule, stated in 5 Cal.Jur. 644, and approved in People v. Lewis, supra [13 Cal.2d 280, 89 P.2d 390], as follows: “* * * the court will not consider the asserted unconstitutionality of portions of an act which do not affect the rights of the party raising the question, in case such portions, if unconstitutional, would fall without affecting the validity of the remainder of the statute.”

As in other cases, the statute comes to us with a strong presumption in favor of its validity. The settled rule in this matter is that “all doubts are to be resolved in favor and not against the validity of a statute; that before an act of a coordinate branch of the government can be declared invalid by the judiciary for the reason that it is in conflict with the Constitution, such conflict must be clear, positive, and unquestionable; and in case of a fair and reasonable doubt as to its constitutionality, the statute should be upheld and the doubt resolved in favor of the expressed wishes of the people as given in the statute.” Jersey Maid Milk Products Co. v. Brock, 1939, 13 Cal.2d 620, 636, 91 P.2d 577, 586. See, also, Matter of Miller, 1912, 162 Cal. 687, 696, 124 P. 427, where substantially the same rule is declared.

Petitioners have filed no brief, but the case was orally argued in their behalf and many allegations of invalidity of the statute are made in their petition. From the argument and the petition we gather the points hereinafter mentioned as being those mainly relied on in support of the claim that the statute is invalid. These objections are that the statute is discriminatory, uncertain, ambiguous, indefinite and arbitrary, and that it violates the Fourteenth Amendment, and the like provision of § 13, Art. I of the California Constitution regarding due process of law, the provision of § 11, Art. I of the California Constitution requiring all laws of a general nature to “have a uniform operation,” the provision of § 21 of Art. I thereof forbidding the granting to any citizen or class of citizens of “privileges or immunities which, upon the same terms, shall not be granted to all citizens”, the provisions of section 25 of Article IV thereof prohibiting special laws in many cases, the provision of section 1 of Article III thereof dividing the powers of government into three separate departments, legislative, executive and judicial and forbidding any person “charged with the exercise of powers properly belonging to one of these departments” to “exercise any functions appertaining to either of the others” and the provision of § 1 of Art. VI thereof vesting “the judicial power of the State” in the courts therein mentioned. We find none of these objections well taken.

One of the principal targets of these attacks is section 1731.5 added by the statute to the Welfare and Institutions Code, which reads as follows: “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.” The objections to this section made under §§ 11 and 21 of Art. I and § 25 of Art. IV of the California Constitution go to the matter of classification, which is said to be improper, and the point made under the Fourteenth Amendment seems to be in essence the same, though stated in terms of due process of law. Objections to other parts of the statute are based on the same ground, that they make an improper classification, so we pause here to consider the rules applicable to that matter. They were fully considered in Martin v. Superior Court, 1924, 194 Cal. 93, 100, 101, 227 P. 762, 765, from which we quote: “It is a settled principle of constitutional law that the Legislature may classify for the purpose of meeting different conditions, naturally requiring different legislation, in order that legislation may be adapted to the needs of the people. * * *

“The classification, however, must not be arbitrarily made for the more purpose of classification, but must be based upon some distinction, natural, intrinsic, or constitutional, which suggests a reason for and justifies the particular legislation. That is to say, not only must the class itself be germane to the purpose of the law, but the individual components of the class must be characterized by some substantial qualities or attributes which suggest the need for and the propriety of the legislation. * * *

“The power to thus classify necessarily carries with it a wide discretion in the exercise thereof. The authority and the duty to ascertain the facts which will justify classified legislation must of necessity rest with the Legislature, in the first instance, to whom has been given the power to legislate, and not to the courts, and the decision of the Legislature in that behalf is ordinarily conclusive upon the courts. Every presumption is in favor of the validity of the legislative act, and the legislative classification will not therefore be disturbed unless it is palpably arbitrary in its nature and neither founded upon nor supported by reason.”

Martin v. Superior Court, supra, was approved and followed on this point in County of San Bernardino v. Way, 1941, 18 Cal.2d 647, 659, 117 P.2d 354, and many other cases might be cited to the same effect.

The question arising on the provision of the Fourteenth Amendment which forbids a state to deny any person the equal protection of the laws is substantially the same as that upon our constitutional provisions above cited. “Equal protection of the laws is not denied by a legislative classification which is not palpably arbitrary and may reasonably be conceived to rest on some real and substantial difference or distinction bearing a just and fair relation to the legislation.” 16 C.J.S., Constitutional Law, § 505, p. 998. “Indeed, it has long been the law under the Fourteenth Amendment that ‘a distinction in legislation is not arbitrary, if any state of facts reasonably can be conceived that would sustain it.’ [Citing cases] ‘The rule of equality permits many practical inequalities.’ ” New York Rapid Tr. Corp. v. New York, 1938, 303 U.S. 573, 578, 58 S.Ct. 721, 724, 82 L.Ed. 1024, 1030.

One of the matters to be considered in this connection is “the inherent purpose of the law” and the relation which the classification bears to it. Martin v. Superior Court, supra, 194 Cal. 102, 227 P. 766. This statute contains its own statement of its purpose in § 1700: “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.” A complete reading of the statute convinces us that this is as accurate a statement of its purpose as could be framed in few words. Much has been spoken and written about youthful delinquency, its causes and possible cures, by jurisprudents, criminologists, social workers and others, and no extended discussion of the subject is needed here. The juvenile court acts constitute an attempt at a partial solution of the problem, but they do not completely cover it, our own act being limited to offenders under 21 years of age. §§ 700, 701, Welfare and Institutions Code St.1937, pp. 1030, 1032. Youthful delinquency does not stop at that age.

This act institutes a new mode of dealing with the problem, especially with respect to offenders between the ages of 21 and 23. For the full and proper execution of its purpose and mode of action, as disclosed by the provisions we have already reviewed, a great variety of institutions and agencies will be required. While it is authorized, when funds are available, to establish and operate new institutions and facilities, no funds appear to have been appropriated for that purpose, but the Authority is authorized to make arrangements with existing institutions for use of their facilities. Necessarily a considerable amount of time must be consumed by the Authority in canvassing the situation and making suitable arrangements for the training and treatment of those committed to it. Petitioners' claim is that in such matters the state must deal with all or none of those to whom the purpose of the act applies, but we think that claim is untenable. It must yield to the practical necessities of the situation arising when a new plan of dealing with a subject is adopted and to be put into effect. The legislature may very well have thought that such a new regime could not be put into full operation at once; that it should be allowed for an initial period to feel its way and develop suitable modes of operation before subjecting it to the full impact of the entire case–load which the legislature deemed within the scope of its general purpose. Section 1731.5 appears to be the result of such a legislative conclusion. We cannot say that either the conclusion or the mode selected for carrying it out, that of leaving to the Authority, in each case, the determination whether its facilities are adequate and the person can be materially benefited, is not reasonable. There is here no improper classification; no forbidden discrimination between those to whom the law is immediately applied and others who may be otherwise dealt with. Such distinctions as are made are based on a sufficient criterion; that is, the adequacy of the available facilities and the probability that the persons affected will be materially benefited thereby, and are well within the category of permissible classification, as above defined.

It appears to be also the contention of petitioner that the provision now under consideration is an improper delegation of legislative power. Such contention cannot be sustained. The statute provides the primary standard to govern the action of the Authority, that is adequacy of facilities and probability of benefit to the person. The delegation of power thus made is within the rule declared in Fillmore Union H. S. Dist. v. Cobb, 1935, 5 Cal.2d 26, 33, 53 P.2d 349, 352, that “authority may be delegated by the Legislature to administrative boards or officers to adopt reasonable rules and terms to carry out the general purpose for which a statute is enacted, even though the delegated power confers a discretion or the necessity of determining terms, qualifications, or facts upon the board or officer within the scope of the legislative act.”

Another attack on the act is directed at the provision that any offender is subject to it (except for the discretion of the Authority until January 1, 1944, which we have already considered) who “is found to be less than 23 years of age at the time of [his] apprehension.” §§ 1731.5, 1732. Petitioner calls attention to the fact that the age here fixed differs from that established by section 25 of the Civil Code, 21, as the age below which persons are minors for general purposes, and contends that for this reason the statute is arbitrary and void. The provision fixing the age of those subject to the act appears to constitute its heart, and it may be that any invalidity of that provision would carry the whole act down with it, but we find no such invalidity. The argument is presented as if some special sanctity attached to the age fixed as that at which, for ordinary purposes, persons pass from the status of minors to that of adults. This, of course, is not true. Even section 25 of the Civil Code recognizes some exceptions to its own rule. The question is simply one of classification and the general rules already stated on that question are applicable here.

We are not without light from the precedents on the application of those rules to this particular subject matter. Thus, in Gouanillou v. Industrial Acct. Comm., 1920, 184 Cal. 418, 421, 193 P. 937, 938, the court said: “It cannot be questioned that the age of majority is a matter of legislative regulation and that the Legislature may prescribe a longer period of minority for some purposes than for others”, and upheld a statutory provision making all persons under 21 minors for the purposes of the Workmen's Compensation Act, as applied to a female who, under the provisions of section 25, Civil Code, as it then stood, ceased to be a minor at 18. A question similar to that confronting us arose in Moore v. Williams, 1912, 19 Cal.App. 600, 610, 611, 127 P. 509, 513, which involved the provisions of the juvenile court act making all persons under the age of 21 subject to its provisions, at a time when the minority of females for general purposes ended by law at the age of 18. It was objected that as to females this was a special law. The court held that sound reason existed for a classification applying the provisions of the law to female persons until they reached the age of 21, and said that “whether the person is or is not a legally declared minor is beside the question.” Substantially the same ruling was made in Ex parte Willis, 1916, 30 Cal.App. 188, 157 P. 819.

We have no doubt that adequate reasons exist here for the classification by which the rehabilitative and corrective methods of treatment provided for by this statute are made applicable to all offenders who are less than 23 years of age at the time of their apprehension. Man passes through a period of youth, during which he is more receptive of and compliant with the impressions that come to him from without than in later, more adult years; and because of this characteristic he is, in his period of youth, not only more likely to be led astray into paths of wrongdoing, but also more amenable to the corrective and rehabilitative effect of those means which the Authority is directed to use. The legislature is thus fully warranted in limiting the application of the statute to those who are in this formative period of development. The limit of this period is not sharply marked; not only may it differ with different persons, but all pass gradually from the one stage to the other. As in all cases where lines must be drawn between zones or classes which gradually merge into each other, the question of the precise location of the line is one for legislative discretion in the first instance, and that discretion is subject to judicial control only when its exercise is so palpably unreasonable and arbitrary that reasonable minds cannot differ as to its character in that respect. See Martin v. Superior Court, supra, 194 Cal. 93, 105, 227 P. 762; Brown v. City of Los Angeles, 1920, 183 Cal. 783, 789, 192 P. 716; Reynolds v. Barrett, 1938, 12 Cal.2d 244, 249, 83 P.2d 29. Here we find nothing on which to base any conclusion that the legislative decision is unreasonable or arbitrary.

Further objections to the act go to its provisions regarding the detention of those who are committed to the Authority, it being argued that such custody may continue for a longer time than that prescribed as the period of imprisonment in punishment of the offenses of which the persons committed have been convicted, that this constitutes an improper discrimination between such persons and others convicted of the same offenses, and that the possible length of the detention by the Authority is so long as to invalidate the act on some other ground not very clearly stated. The act provides that the Authority may either permit a person committed to it to be at liberty under its supervision or order his confinement, § 1766, that it shall keep such person “under supervision and control so long as in its judgment such control is necessary for the protection of the public”, and shall discharge him “as soon as in its opinion there is reasonable probability that he can be given full liberty without danger to the public.” § 1765. These provisions, however, do not make possible an unlimited detention because they are limited by other provisions that persons committed to the Authority by a juvenile court, or on conviction of a misdemeanor, shall be discharged on reaching the ages of 21 or 23 respectively or upon the expiration of a two year period of control, whichever is later, §§ 1769, 1770, and that persons convicted of a felony shall be discharged at the age of 25, § 1771, unless the Authority returns such a person to the court for further action and the court commits him to prison, as may be done under sections 1780–1782. If this is done the time during which he is under control of the Authority is deducted from the maximum term of imprisonment prescribed by law. § 1782. Thus it is possible that a person committed by the juvenile court may be detained by the Authority until he is nearly 23, if committed just before juvenile court authority over him expires at age 21; any other misdemeanant may be detained until the age of 25 or possibly a short time thereafter, if he is apprehended so short a time before reaching the age of 23 that the course of proceedings in court against him does not reach the stage of commitment until he is 23 or past. Felons may in all cases be held by the Authority until the age of 25, but no longer, except to await the court hearing above mentioned.

The petitioner now before this court has been convicted of a felony, and while we see no reason to doubt the validity of these provisions as a whole, it is not necessary to pass upon them except as they affect felons. Felons constitute a class which is separable from the other persons subject to the act, and the validity of the act as it applies to felons would not be affected by possible invalidity of its provisions regarding others. As to felons, we note that, as already stated, if they are eventually sentenced to prison, the time spent under the control of the Authority is deducted from the maximum term, so that such term is not increased by the operation of the act. The length of time for which they may be held does not constitute a discrimination against them, nor does it for any other reason invalidate the act.

In Ex parte Liddell, 1892, 93 Cal. 633, 640, 29 P. 251, 253, the court upheld the act of 1889 (Stats.1889, p. 111) establishing the Whittier Reform School, against an objection similar to the one we are now considering. That act undertook to provide a reform school for juvenile offenders, that is, those between the ages of 10 and 16, and while commitments to the school could be made before conviction, they could also be made after conviction, and the commitment of the particular person there before the court was made after conviction. On this point the court said: “It is true the term of detention at the reform school may be made greater by the judgment of the court then the term of imprisonment in the county jail or in the state prison for the same offense would be, but it cannot be said that the punishment inflicted is greater than could be put upon an adult for the same offense. The object of the act is not punishment, but reformation, discipline, and education. [Pen.Code,] Section 12. While detained for a longer period, perhaps, than he would be if sent to state prison or the county jail, the conditions surrounding the child are vastly different. He is given the opportunity and instruction to learn a trade, and qualify himself for the duties of citizenship, so that at the end of his term he will go out prepared to take care of himself, and those dependent upon him, without the odium which attaches to an ex–convict. There is no doubt of the power of the state to make and enforce provisions for the compulsory education of all children within the state; and it is equally clear that the state may arrest the downward tendency of those who have offended against its laws, and manifested a disposition to follow a criminal career, by placing them in an institution where they will receive the care, education, and discipline necessary to prepare them for honorable citizenship. The records of the penal institutions of this state show that a large majority of their inmates are young men,––many of them juveniles. The legislature, in its wisdom, has endeavored to provide a place for children manifesting criminal traits, where they can be cared for without being thrown under the baneful influence of veterans in crime. We think the policy of the act a wise one, and we see no constitutional grounds for declaring it invalid.” In Ex parte Nichols, 1896, 110 Cal. 651, 43 P. 9, 10, the act (Stats. 1889, p. 100) establishing the Preston School of Industry and providing that boys under 18 years of age who were convicted of crimes might be committed to it was in question. One of the objections to its validity was “that it is unequal in its operation, because under it an adult can be punished for petit larceny by imprisonment in the county jail for only six months, while a minor may, for the same offense, be sent to said school for a much longer period.” Dealing with this point, the court quoted from Ex parte Liddell, supra, the same language which we have excerpted therefrom, and followed it.

In People v. De Fehr, 1927, 81 Cal.App. 562, 572, 254 P. 588, 592, the court had under consideration the statute relating to commitments of convicted youths to the Preston School of Industry, and declared of such commitments “* * * the purpose is (and such is the obvious purpose of the law authorizing such a course) not to punish the juvenile offender, but to reform and retrieve him by giving him such training and education as will constitute a foundation that will make him, * * * an upright and useful citizen”, and accordingly held that such a commitment was not a judgment, and the court might thereafter revoke it and pronounce judgment upon the conviction.

In re Daedler, 1924, 194 Cal. 320, 228 P. 467, dealt with the juvenile court law, discussed it at some length and held that proceedings under it are not penal, but reformative and educational in character, and hence the law is not invalid because it denies a jury trial to the juveniles upon whom it operates.

In the present case it is clear that the control of the Authority over a person committed to it, and the confinement to which the Authority may subject him, are not to be regarded as punishment at all, but as a means of reformation, correction and rehabilitation. Hence the decisions just reviewed are applicable here, and the fact that control or confinement under the statute may extend over a greater period of time than the possible punishment for the offense of which the person committed to the Authority has been convicted does not show any improper discrimination between him and other persons who have committed the same offense but are not subject to the act and hence may be confined for a lesser time.

Complaint is also made that the power to determine the exact nature of the reformatory treatment to which the person committed shall be subjected, and how long it shall continue, and to decide when he is so far reformed as to be a fit subject for discharge is reposed in the Authority rather than the court and this is claimed to be a delegation of legislative and judicial powers to the Authority and hence in violation of the provisions of the California Constitution above cited requiring a separation of legislative, executive and judicial departments, Art. III, and declaring that the judicial power of the state shall be vested in certain enumerated courts. § 1 of Art. VI.

There is here no improper delegation of legislative power as contended. The legislature has itself created the Authority, fixed its powers and duties, provided what convicted persons shall be committed to it, and established by general rule the standards by which it shall determine what modes of treatment to apply to such persons and when they shall be released. This is enough to satisfy constitutional requirements on this point. See Fillmore Union H. S. Dist. v. Cobb, 1935, 5 Cal.2d 26, 33, 53 P.2d 349, already cited and quoted, and People v. Pryor, 1936, 17 Cal.App.2d 147, 152, 61 P.2d 773, holding that the granting of a discretion as to nature of punishment is not an improper delegation of legislative power.

This statute is quite similar to the indeterminate sentence law, in that it takes from the court any discretion to determine how long a convicted person shall be detained after his commitment and how he shall be treated during such detention. Upholding the indeterminate sentence law, the Supreme Court said in In re Lee, 1918, 177 Cal. 690, 693, 171 P. 958, 959: “In answering the claim that the authority vested by the indeterminate sentence law in the board of prison directors is a delegation of either legislative or judicial powers to an executive body, it is pointed out that the legislative function is filled by providing the sentence which is to be imposed by the judicial branch upon the determination of the guilt of the offender. This is done by the enactment of the indeterminate sentence law. The judicial branch of the government is intrusted with the function of determining the guilt of the individual and of imposing the sentence provided by law for the offense of which the individual has been found guilty. The actual carrying out of the sentence and the application of the various provisions for ameliorating the same are administrative in character, and properly exercised by an administrative body.” This language was quoted with approval in People v. Sama, 1922, 189 Cal. 153, 156, 207 P. 893.

It is also contended that the statute does not constitute due process of law because it allows no appeal from the order committing a person to the Authority. Whether such an appeal is possible we need not decide, for “Due process does not comprehend the right of appeal.” District of Columbia v. Clawans, 1937, 300 U.S. 617, 627, 57 S.Ct. 660, 663, 81 L.Ed. 843, 847.

Other objections made to the validity of this statute have been considered, but we do not deem it necessary to prolong this opinion by discussion of them. We see no reason to doubt the validity of the statute as a whole, and, as already stated, it is not now our duty to consider the validity of its separable provisions.

In addition to the provisions of section 1731.5, already considered, for limited commitments until January 1, 1944, the act provides, in section 1730: “(a) No person may be committed to the Authority until the Authority has certified in writing to the Governor that it has approved or established places of preliminary detention and places for examination and study of persons committed, and has other facilities and personnel sufficient for the proper discharge of its duties and functions. (b) Before certification to the Governor as provided in subsection (a), a court shall, upon conviction of a person under 23 years of age at the time of his apprehension, deal with him without regard to the provisions of this chapter.” The return herein states that the Authority has made the certificate here provided for. Petitioner contends that the certificate made is not sufficient to meet the requirements of section 1730. We find no fatal defect in it. It contains three restrictions not expressly provided for in section 1730: (1) it declares that the facilities provided are only for male persons, (2) it states that the Authority has established a place for examination and study “on a limited individual case basis” and (3) it declares the facilities and personnel sufficient “under this limited certification.”

It is clear from the nature and purpose of the functions the Authority is to perform, that it must, to a considerable extent, if not altogether, segregate the sexes and provide separate facilities for them. We find no provision in the act requiring that the Authority be ready to deal with both sexes before it can receive either; and the purpose of the act will be better furthered if it proceeds with each as soon as possible. This it has apparently sought to do by issuing this certificate limited to males and we deem such a certificate a sufficient compliance with the act as to males. Had the word “males” not been inserted in the certificate, the Authority could have brought about the same result during the preliminary period under section 1731.5, by declaring its opinion, when the commitment of a female was proposed, that its facilities were not adequate. There is nothing in the act declaring that but one certificate may be issued, or that the one first issued shall state the readiness of the Authority to receive all persons who are properly subject to commitment. Indeed, the act plainly contemplates that the certificate shall be issued before the Authority has full and complete facilities to care for all persons subject to commitment. The certificate is but a general notice that the Authority is ready to begin its work and the provision for it should be liberally construed to carry out the purpose of the act. § 1700. It may be that the certificate issued is no certificate at all as to females, and that before they can be committed to the Authority, it must issue another certificate including them; but this can readily be done.

The limitation in the certificate to “a limited individual case basis” is but a restatement, in abbreviated form, of the provisions of section 1731.5 already discussed, for a preliminary period of limited comitments, and it is sufficient to authorize commitments under that section. The third limitation is but a reference to the other two and does not affect the validity of the certificate.

Another point made in the petition is that “no sentence or judgment has ever been imposed upon said petitioners by said Superior Court” and that the time therefor has passed. As we understand this point it is that no commitment to the Authority can be made under the act until after formal judgment has been pronounced upon a conviction. In the Herrera case, which remains before us for decision, the petitioner, after being found guilty, made an application for probation, but before it was considered the court, without pronouncing any judgment, ordered “that proceedings herein be suspended” and committed him to the Authority. The direct provisions for commitments to the Authority are contained in sections 1731.5, 1732 and 1732.7 which authorize the commitment of persons “convicted of a public offense” without expressly requiring a judgment as a pre-requisite to such commitment, and in section 1736, which authorizes a juvenile court to commit “persons subject to its jurisdiction” to the Authority. Proceedings in the juvenile court are not criminal in nature and hence that court never pronounces judgment of conviction upon such persons, so in this case no judgment is contemplated.

While the term “convicted” is ordinarily satisfied by a plea, verdict or finding of guilty, without a judgment (In re Anderson, 1939, 34 Cal.App.2d 48, 92 P.2d 1020), the connection in which it is used may give it a different meaning, extending it so as to include the existence of a judgment within its import. In re Riccardi, 1920, 182 Cal. 675, 677, 189 P. 694. The context in the statute here under consideration gives it such an extended signification. Thus, section 1739 provides that “the right of a person who has been convicted of a public offense * * * to an appeal from the judgment of conviction shall not be affected by anything in this chapter”, and also that such person may be admitted to bail during the appellate proceedings. There can, of course, be no such appeal unless the judgment has been pronounced. Sections 1731.5 and 1732 provide for commitment to the Authority of persons who are “not sentenced to death, imprisonment for life, imprisonment for not more than 90 days, or the payment of a fine.” In case of many offenses, punishments which, under this proivsion, prevent the commitment of a defendant to the Authority are alternative to other punishments which permit such a commitment. For examples see Pen.Code, § 182, conspiracy; § 245, assault with a deadly weapon, the offense here involved; § 221, other assaults; § 264, rape; § 271, abandonment of child; § 473, forgery; § 496, receiving stolen porperty; Vehicle Code, § 500, negligent homicide by vehicle driver; §§ 500, 501, driving while intoxicated, St. 1935, pp. 173, 174. It is not conceivable that these and other offenses in like case are never to afford cause for commitments to the Authority; but as to them, obviously the nature of the sentence cannot be known and it cannot be determined whether a commitment to the Authority is proper until the judgment has been pronounced. The statute gives no hint that it intends to establish a different procedure in commitments for different crimes. The conclusion is plain that no commitment is to be made, except by the juvenile court, until after judgment, and the commitment then operates to suspend the execution of the judgment.

Section 1782 is not inconsistent with this conclusion. It provides that after the Authority has returned to the court a person whom it can no longer hold under the act, but who in its opinion, should not be released, the court may “discharge the person, admit him to probation or may commit him to the State prison.” Here is an express provision for discharge, averting the attribute of finality which would otherwise eventually accrue to an outstanding judgment. Probation, under the Penal Code provisions, § 1203.1, may be granted after judgment and even after appeal from the judgment. Lloyd v. Superior Court, 1929, 208 Cal. 622, 283 P. 931. While the term “commit” may be used of a judgment placing a person in custody, it does not necessarily refer, in all cases, to the original judgment determining the custody. It may mean simply an ancillary or supplementary order for carrying the original judgment into force. Here the court is to inquire into the situation and determine whether the judgment already pronounced is to be carried into effect. If its order is in the affirmative, it thereby “commits” him to prison. Section 1783 is also confirmatory of the proposition that a judgment is to be entered prior to the order of commitment authorized by section 1782, for it expressly provides for an appeal from such order of commitment. No such provision would be necessary if that order were the judgment of conviction, for in that case an appeal would be fully authorized by section 1237 of the Penal Code.

In this case there has been no judgment and the commitment to the Authority is therefore premature. This is a matter that goes to the jurisdiction of the court, to the extent, at least, that the point may be raised on habeas corpus. The court, in proceeding under this act, is exercising a special and limited statutory jurisdiction and cannot proceed unless all the material conditions to its authority specified in the statute have been substantially complied with. Texas Co. v. Bank of America, 1935, 5 Cal.2d 35, 39, 40, 52 P.2d 127; Fortenbury v. Superior Court, 1940, 16 Cal.2d 405, 408, 106 P.2d 411; Abelleira v. District Ct. of App., 1941, 17 Cal.2d 280, 288, 289, 109 P.2d 942, 132 A.L.R. 715.

This conclusion renders it necessary to discharge the petitioner from the custody of the Authority. However, his conviction still stands and it does not appear, from anything before us, that no further proceedings can be taken upon it. An application for probation was pending when he was committed to the Youth Correction Authority, and until that is disposed of the Superior Court does not lose jurisdiction to pronounce judgment against the defendant. Pen.Code, § 1191. Upon petitioner's conviction he was remanded by the Superior Court to the custody of the sheriff and he should be returned to that custody. Pen. Code, § 1493. That court may, on his return to such custody, proceed further against him, and such proceedings may, if properly carried out, result in his commitment again to the Authority.

This proceeding is dismissed as to petitioners Sandoval and Loya. The petitioner Herrera is discharged from the custody of the Youth Correction Authority and he is ordered to be committed to the custody of the Sheriff of the county of Los Angeles.

On Motion for Rehearing.

The respondent asks us to grant a rehearing for the purpose of considering further the last point discussed in our opinion, that is, the necessity of pronouncing judgment before committing a convicted defendant to the Youth Correction Authority. We find nothing suggested in the petition which would cause us to change our views on this point. One of the reasons urged for such a change is the greater wisdom, from a social standpoint, of a provision permitting commitment without judgment. But conceding this point, it is one of legislative discretion, to be addressed to the legislature. We cannot give a statute a construction not warranted by its terms, merely because we or others might believe the statute would thereby be improved. Our attention is also called to the fact that probation may be granted without pronouncing judgment and the question is asked: “If no judgment and sentence is contemplated in the mechanics of probation after a conviction, why is it necessary to require judgment and sentence in the mechanics of carrying out this Act which has as its purpose the education and betterment of the person convicted?” Again, the question should be directed to the legislature. The statute governing probation expressly provides that probation may be granted without pronouncing judgment, Pen.Code, § 1203.1, yet with that example before it, the legislature failed to insert any such provision in the statute before us.

The respondent's position appears to be that, if the court could sentence the offender to a punishment which is not one of those mentioned in the statute as preventing his commitment, the offender may be committed to the Authority without imposing sentence. This is a plain departure from the terms of the statute. It provides only for the commitment of a person who “is not sentenced to * * * imprisonment for not more than 90 days” etc., St.1941, p. 2526, § 1731.5 while respondent's construction of it requires the words “is not sentenced” to be changed to read “is not required to be sentenced” or “may be sentenced to a punishment other than.” This ignores a form of words which appears to have been carefully chosen for the express purpose of making a rule which can be readily applied to all offenses for which a variable punishment, partly within and partly without the statutory rule, is prescribed by law. The legislature might have provided that all persons convicted of those offenses could be committed to the Authority, or that none of them could be; but it did neither. It chose to establish a rule which required the court first to pass on the gravity of the offense and authorized it then to commit those whose offenses it deemed sufficiently serious to warrant the heavier punishments. Taking the provision for commitments as a whole it embodies an intent to exclude from the ministrations of the Authority those whose offenses are of such serious nature––to be punished by death or life imprisonment––that they are presumably not capable of reformation, and those committing such minor offenses––to be punished by fine or not more than 90 days' imprisonment––that it is deemed unnecessary to burden the Authority with them. We do not find it our duty to frustrate the latter intent by construction.

Respondent's construction of the provision “is not sentenced to” etc. in effect holds it to be satisfied if no sentence has yet been imposed. Literally speaking, one who has not been sentenced at all, that is against whom no judgment has been pronounced, has not been sentenced to death etc., so that, taking the provision in this sense, it would be possible, even in a capital case, to commit the convicted defendant, before judgment, to the Authority. Such construction would entirely ignore the words descriptive of the kinds of punishment which prevent a commitment to the Authority and leave them to hang as mere dead and useless leaves on the statutory tree––a result not to be reached unless no other is reasonably possible.

Another reason why judgment should be pronounced, in case of the offense committed by petitioner, as well as many other offenses with variable punishments, appears from the provisions of sections 1770 and 1771, Welfare and Institutions Code, St.1941, pp. 2531, 2532, which fix different limits for the time a person convicted of a felony may be held by the Authority from those established for one convicted of a misdemeanor. It is settled law that in case of an offense, such as that here involved, the punishment prescribed for which might make it either a felony or a misdemeanor, “the charge stands as a felony for every purpose up to judgment, and if the judgment be felonious, in that event, it is a felony after as well as before the judgment; but if the judgment is for a misdemeanor it is deemed a misdemeanor for all purposes thereafter.” Doble v. Superior Court, 1925, 197 Cal. 556, 577, 241 P. 852, 860; 7 Cal.Jur. 871; Pen.Code, § 17. The provisions of sections 1770 and 1771 could be applied in the light of this rule so as to regard the petitioner here as one convicted of a felony, no judgment having yet been pronounced; but such application would not be in accord with the underlying purpose of the statute to discriminate between the more serious crimes and those of lesser gravity.

Furthermore, until the trial court has determined whether petitioner stands guilty of a felony or a misdemeanor the Authority cannot know and cannot determine whether petitioner will be subject to discharge when he reaches the age of 23 or be subject to its jurisdiction and control as a felon until he is 25 and to be returned to court for further proceedings under section 1782.

We find in section 1782 a further necessity for judgment before commitment in case of these offenses whose punishment has a double aspect. If no judgment has been pronounced, one convicted of such an offense is convicted of a felony, under the rule above stated, and may be returned to the court for further proceedings, under sections 1780–1782. When this is done the discretion of the court is limited, by section 1782, to three acts only; it may “discharge the person, admit him to probation or may commit him to the State prison.” If this is a provision for judgment, as it must be if no judgment has previously been pronounced, the discretion which the Court has, by the Penal Code, to sentence one in the situation of the petitioner here to a term in jail or to pay a fine has disappeared, without any hint of an intention to destroy it in the title of the Act or in any of its other provisions.

The petition for rehearing is denied.

SHAW, Justice pro tem.