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Court of Appeal, Fifth District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Harry Coley SMITH, Defendant and Appellant.

Cr. 768.

Decided: September 22, 1970

William C. Kuhs, Bakersfield, for defendant and appellant. Thomas C. Lynch, Atty. Gen., Sacramento, for plaintiff and respondent.


On February 14, 1964, appellant pled guilty to forcible rape in violation of Penal Code, section 261, subdivision 3. Appellant was 19 years of age, when he was committed by the Superior Court of Kern County to the California Youth Authority pursuant to Welfare and Institutions Code, section 1731.5. Under this section the superior court may commit any person, who was under the age of 21 years at the time of apprehension, and who was not sentenced to death or life imprisonment, to the California Youth Authority if the Authority believes that the person can be materially benefited by its procedure and discipline.

Appellant was paroled from the Authority on August 18, 1966. Nine months later he was arrested on suspicion of murder, but the Kern County Grand Jury refused to return an indictment against him. On July 28, 1967, the Authority revoked appellant's parole because of ‘overall poor adjustment to parole conditions,’ and he was confined at Deuel Vocational Institution. A short time later appellant threatened Lieutenant Eastman over Eastman's charge that appellant was a homosexual.

On March 7, 1969, the California Youth Authority filed a petition with the Kern County Superior Court, pursuant to article 6 of chapter 1 of division 2.5, sections 1800–1803 of the Welfare and Institutions Code, hereafter referred to as article 6, for an order directing that appellant remain subject to its control for an additional five years; appellant was about to attain the age of 25 years, and absent such an order was entitled to be discharged under Welfare and Institutions Code, section 1771. The Authority's petition alleged that appellant was physically dangerous to the public because of a mental or physical deficiency, disorder or abnormality.

On March 19, 1969, appellant appeared in the superior court with appointed counsel; his request for an examining doctor was granted. A few days later defendant's motion for investigative and research assistance was also granted. On April 24, 1969, the court held a hearing on the petition, and at the conclusin of the hearing committed appellant to the California Youth Authority for an additional five-year period. The judge expressed doubt as to the constitutionality of the procedure under which appellant was committed but felt himself bound by the decisional law. This appeal followed.

Appellant presents two main contentions for reversal: that the evidence does not support the court's decision that he is physically dangerous to the public because of mental and physical defects or abnormalities, and that the procedure under which he was committed to the custody of the Youth Authority for an additional five-year-period is unconstitutional. We turn first to the constitutional challenge.

Article 6, the procedure under which appellant's commitment was extended, was adopted by the Legislature during its 1963 session and applies to persons committed by a juvenile court in juvenile court proceedings and to persons convicted in criminal proceedings, if they were under the age of 21 years at the time of their apprehension.

Briefly, under this procedure, whenever, the California Youth Authority determines that the discharge of a person committed to its custody would be physically dangerous to the public because of a mental or physical deficiency, disorder or abnormality, it may petition the court which initially committed such person to extend his commitment for a period of two years beyond the age of majority, if the original commitment was by a juvenile court,1 or for a period of five years after the person has attained the age of 25 years, if the commitment resulted from a felony conviction in criminal proceedings.2 Upon receipt of the petition the court must conduct a hearing, and if at the conclusion of the hearing it is of the opinion that the discharge of the person would be physically dangerous because of any mental or physical deficiency, disorder or abnormality, it must extend the commitment as prayed for in the petition. However, while the stated purpose for the extended commitment is for care and treatment, a person may be transferred by the Authority to the custody of the Cirector of Corrections for confinement in a state prison. Moreover, the procedure to extend the person's commitment may be repeated every two or five years, as the case may be, making it possible to keep him in custody for the rest of his life. And, although certain procedural safeguards are provided, such as the right of counsel and the right to confront witnesses, no provision is made for the issues of fact to be determined by a jury nor is the quantum of proof specified. It is with regard to these latter deficiencies that appellant contends that law is unconstitutional.

Because it is patent that article 6 is an integral part of the juvenile court law of the state, and because it also applies to persons who are convicted in criminal proceedings only if they were under the age of 21 years at the time of apprehension, and then only if they were committed to the custody of the California Youty Authority, we believe it essential to review the decisions of the United States Supreme Court relating to the constitutional rights of minors before attempting to answer the precise constitutional questions presented herein. The first decision which comes to mind is Kent v. United States, 383 U.S. 541, 554–555, 86 S.Ct. 1045, 1054, 16 L.Ed.2d 84, decided in 1966, in which the Supreme Court expressed dissatisfaction with the operation of state juvenile court systems and criticized the parens patriae doctrine. The court stated:

‘The theory of the District's Juvenile Court Act, like that of other jurisdictions, is rooted in social welfare philosophy rather than in the corpus juris. Its proceedings are designated as civil rather than criminal. The Juvenile Court is theoretically engaged in determining the needs of the child and of society rather than adjudicating criminal conduct. The objectives are to provide measures of guidance and rehabilitation for the child and protection for society, not to fix criminal responsibility, guilt and punishment. The State is parens patriae rather than prosecuting attorney and judge. But the admonition to function in a ‘parental’ relationship is not an invitation to procedural arbitrariness.

‘Because the State is supposed to proceed in respect of the child as parens patriae and not as adversary, courts have relied on the premise that the proceedings are ‘civil’ in nature and not criminal, and have asserted that the child cannot complain of the deprivation of important rights available in criminal cases. It has been asserted that he can claim only the fundamental due process right to fair treatment. For example, it has been held that he is not entitled to bail; to indictment by grand jury; to a speedy and public trial; to trial by jury; to immunity against self-incrimination; to confrontation of his accusers; and in some jurisdictions [but not in the District of Columbia, see Shioutakon v. District of Columbia, 98 U.S.App.D.C. 371, 236 F.2d 666 (1956), and Black v. United States, supra, 122 U.S.App.D.C. 393, 355 F.2d 104 (1965)] that he is not entitled to counsel.

‘While there can be no doubt of the original laudable purpose of juvenile courts, studies and critiques in recent years raise serious questions as to whether actual performance measures well enough against theoretical purpose to make tolerable the immunity of the process from the reach of constitutional guaranties applicable to adults. There is much evidence that some juvenile courts, including that of the District of Columbia, lack the personnel facilities and techniques to perform adequately as representatives of the State in a parens patriae capacity at least with respect to children charged with law violation. There is evidence, in fact, that there may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.’

The following year the court made a notable pronouncement as to the constitutional rights of juveniles and held that the right of counsel, the privilege against self-incrimination and the right to confront and cross-examine witnesses were applicable to state juvenile court proceedings originating from criminal charges even through such proceedings are labeled civil (In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527). Less than three years later, the court also held that the degree of proof in such proceedings is ‘beyond a reasonable doubt,’ not by a preponderance of the evidence (In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368). Now pending before the Supreme Court is the question whether the fundamental right of jury trial is applicable to juvenile court proceedings. We do not arrogate unto ourselves the prerogative of guessing at the Supreme Court's ultimate determination of this question, but we do note that in criminal trials of adults the high tribunal brushed aside previous assumptions to the contrary and added jury trial to the list of constitutional safeguards imposed upon the states under the due process clause of the Fourteenth Amendment. The court, in Duncan v. State of Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491 said:

‘Because we believe that trial by jury in criminal cases is fundamental to the American scheme of justice, we hold that the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which—were they to be tried in a federal courr—would come within the Sixth Amendment's guarantee.’

We are not called upon to decide the question as to whether a jury trial is constitutionally required in juvenile proceedings conducted under the juvenile court law of this state. We are here concerned with a statute which applies to juveniles only after they have attained the age of majority, and then only for a physical or mental defect existing at that time. Nevertheless, as we have stated, article 6 is an integral part of the juvenile court law, and under this law the original proceedings start with a commitment, not a conviction, and are deemed civil under the parens patriae doctrine. Yet, it is clear that in seeking to retain custodial control over a person who has attained the age of majority, the California Youth Authority does not act as parens patriae; it acts as the protector of society against persons physically dangerous to the public. (In re Valenzuela, 275 A.C.A. 537, 541, 79 Cal.Rptr. 760; In re J.E., 268 Cal.App.2d 761, 74 Cal.Rptr. 464.) In short, while the initial offense is the jurisdictional link which makes it possible for the state to retain custodial control over a person beyond the age of his majority, the prolonged commitment is not for what he did when he was a minor, but for what he is likely to do in the future. Furthermore, as we have seen, the procedure can be repeated as often as necessary so that, conceivably, a person can be held in custody for the rest of his life. He can even be transferred from the custody of the Youth Authority to the Director of Corrections for confinement in the state prison. Thus, although the challenged legislation is aimed at rehabilitation, not punishment, ‘it is penal in nature and effect.’ (In re Valenzuela, supra, 275 A.C.A. 537, 541, 79 Cal.Rptr. 760, 763.)

Were we to hold that a jury trial is not constitutionally required for a commitment hearing conducted under article 6, it would mean that in this state a minor, who was initially committed by a juvenile court without the benefit of a trial or who was convicted of a relatively minor offense, could be held in custody for the rest of his life without ever having the right to a jury trial at any stage of his incarceration as an adult. We cannot subscribe to this regressive proposition. Clearly, if such procedural safeguards as the right to counsel, the privilege against self-incrimination and the right to confrontation are applicable to the adjudicatory stage of juvenile proceedings in which the state is acting as parens patriae and which are traditionally deemed civil in nature a fortiori the right to a jury, the most fundamental right of all, constitutionally applies to proceedings which could result in a person's confinement in state prison for most of his life, though committed or convicted when a minor.

The Attorney General relies on Sas v. State of Maryland, D.C., 295 F.Supp. 389, to bolster his argument that a proceeding for the commitment of persons who are mentally ill and dangerous to society does not come within the ambit of Duncan v. State of Louisiana, supra, 391 U.S. 145, 88 S.Ct. 1444, because it is not regarded as punishment, and its operation does not promote the traditional aims of retribution and deterrence. Accordingly, he asserts that it is ‘clear beyond cavil’ that a hearing to extend a commitment under sections 1800–1803 falls into the civil category in which a jury trial is not guaranteed by either the federal or state constitutions.

We are not persuaded by the Attorney General's argument. It is true that the extended commitment is for a present mental condition and for something the person may do in the future, but the fact remains that in most cases the jurisdictional link is the commitment for a criminal offense for which a jury trial was also denied. Furthermore, although the stated purpose for the additional confinement is care and treatment, confinement in a state prison is possible. Thus, while the confinement may not be punishment in the historical sense, it is punishment nonetheless to the person confined.

We agree with Professor B. J. George, Jr. that ‘the signs are abundant that the protective processes by which organs of state assume responsibility for the immature, the mentally abnormal and the disadvantaged are about to undergo the most searching judicial examination under the due process and equal protection clauses.’ (8 Santa Clara Lawyer, 133.) In fact, our state Legislature paved the way to this enlightened viewpoint by adopting the Lanterman-Petris-Short Act (Pt. 1, Div. 5, commencing with § 5000 of the Welf. & Inst.Code) for the care and treatment of mentally disordered persons and persons impaired by chronic alcoholism. Under this act, which became operative July 1, 1969, before a mentally disordered person can be involuntarily detained for prolonged treatment, he must be accorded a jury trial, and the findings of the jury must be unanimous (§ 5303). If persons who are dangerous to others because of mental infirmities or disorders are entitled to a jury trial before they can be involuntarily committed to a hospital for care and treatment, would it not be a flagrant denial of equal protection under the law and an unreasonable classification to deny juveniles who attain the age of majority the same privilege merely because they were initially committed to the custody of the California Youth Authority for some minor transgression? We believe that the answer to this quesiton is self-evident.

Despite what we have said, we do not find it necessary to declare article 6 unconstitutional. It is the duty of the court to construe legislative enactments so as to uphold their constitutionality, and all presumptions and doubts must be resolved in favor of validity (Higgins v. City of Santa Monica, 62 Cal.2d 24, 41 Cal.Rptr 9, 396 P.2d 41). Accordingly, to insure equal protection under the law to all juveniles committed under the juvenile court laws of this state and to preserve their fundamental right to a jury trial after they attain the age of majority in a proceeding which is ‘penal in nature and effect,’ we may and do read into article 6 a provision for a jury trial as to all factual issues. (People v. Lally, 19 N.Y.2d 27, 277 N.Y.S.2d 654, 660, 224 N.E.2d 87.) Also, to conform with the United States Supreme Court's enunciation in In re Winship, supra, 90 S.Ct. 1068, 1075, we hold that the burden of proof in such a proceeding is ‘beyond a reasonable doubt.’

Up to this point, we have been primarily concerned with the rights of juveniles committed under the juvenile court law. We are, of course, mindful that appellant was not initially committed under the juvenile court law; he was convicted of forcible rape in criminal proceedings and could have received an indeterminate sentence in state prison (Pen.Code, § 1168). We, therefore, turn to respondent's contention that, in actuality, appellant was benefited by his commitment to the Youth Authority and, hence, that he cannot challenge the constitutionality of article 6.

We have no quarrel with the proposition that only a person detrimentally affected by an unconstitutional enactment can raise a constitutional challenge. We simply do not believe that the principle is applicabel to this case. Although appellant could have been given an indeterminate sentence under the adult provisions of the Penal Code, he was not sentenced by the court under those provisions. Instead, he was placed in the custody of the California Youth Authority, prusuant to Welfare and Institutions Code, § 1731.5, presumably, after the court determined that he would be benefited by the Authority's procedures and discipline. Moreover, while the Youth Authority could have petitioned the committing court under article 5, sections 1780–1783, of the Welfare and Institutions Code to commit appellant to state prison on the ground that his ‘unrestrained freedom’ was dangerous to the public, the Authority did not elect to do so. On the contrary, it petitioned pursuant to article 6, apparently because that article enables the Authority to retain jurisdiction over persons who, it believes, can still be helped by its procedures and, probably, because, if necessary, the extended commitment can be repeated every five years; under article 5, the Youth Authority loses jurisdiction over the person committed thereunder, and the commitment cannot be extended in five-year intervals even though it may be desirable from a public safety standpoint to retain custodial control of the individual; the court must either discharge the person, admit him to probation, or commit him to state prison, and if he is committed to state prison, the maximum term of the commitment is for a period equal to the maximum term prescribed by law for the offense for which he was convicted, less time served with the Youth Authority. Thus, having proceeded under article 6, the Authority is bound by its provisions. As we have dimonstrated, article 6 is an integral part of the juvenile court law, and to uphold its constitutionality we have construed it to contain a provision for a jury trial on issues of fact. By necessity, the same right applies to all persons committed thereunder, particularly when it is possible to keep them in custody for the rest of their lives, not for the initial crime they committed, but for what they allegedly did while in custody because of a present mental or physical deficiency or abnormality.

The order is reversed and the cause remanded for jury trial in accordance with the views expressed herein.


1.  See Welfare and Institutions Code, sections 1769 and 1802.

2.  See Welfare and Institutions Code, sections 1771 and 1802.

GARGANO, Associate Justice.

STONE, P. J., and COAKLEY, J., concur.

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