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Court of Appeal, Second District, Division 5, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. IN RE: JOHNNY WAYNE G., Defendant and Appellant.

Cr. 34166.

Decided: August 24, 1979

Seymour I. Cohen, Torrance, under appointment by the Court of Appeal, for defendant and appellant. Evelle J. Younger and George Deukmejian, Attys. Gen.; Robert E. Philibosian, Chief Asst. Atty. Gen., Criminal Division; S. Clark Moore, Asst. Atty. Gen.; Juliet Swoboda and Donald R. Currier, Deputy Attys. Gen., for plaintiff and respondent.

On October 10, 1978, the minor was arrested for burglary. A so-called section 602 petition was filed in juvenile court on October 12, and on October 18, represented by counsel, he admitted having committed second degree burglary. On October 30, he was declared a ward of the court and ordered placed in the Camp Community Placement Program, physical confinement not to exceed three years. (Pen.Code ss 18, 461, subd. 2; Welf. & Inst. Code s 726.) It appeared that he had been in custody since the time of his arrest and his counsel promptly moved for credit pursuant to section 2900.5 of the Penal Code. The court, relying on In re Leonard R. (1977) 76 Cal.App.3d 100, 103-105, 142 Cal.Rptr. 632, denied the credit. This ruling is the only issue on appeal


The minor does not claim that the statutory language of section 2900.5 of the Penal Code entitles him to the credit he seeks. His claim is, rather, that equal protection demands that he be permitted a credit to which an adult criminal would have been entitled. The assertion is squarely contra to In re Leonard R., supra. In that case another division of this court held that section 2900.5 of the Penal Code “by its very terms” was not applicable to juvenile commitments; further, it rejected an equal protection argument based on People v. Olivas (1976) 17 Cal.3d 236, 131 Cal.Rptr. 55, 551 P.2d 375, on the ground that Olivas did not apply to juvenile court commitments. On that basis, the Leonard R. court also distinguished People v. Sandoval (1977) 70 Cal.App.3d 73, 87-91, 138 Cal.Rptr. 609, where the defendant had been committed to the California Youth Authority from adult court after his probation had been revoked. One of the questions on Sandoval's appeal was whether or not he “should have received credit for one year that was served as a condition of probation, pursuant to Penal Code section 2900.5.” (Id., p. 87, 138 Cal.Rptr., p. 617.) Applying Olivas which was, of course, not distinguishable on the ground later relied on in Leonard R. the court answered the question in the affirmative and allowed the credit. Leonard R. and Sandoval are, therefore, reconcilable, if the juvenile/adult court dichotomy has any validity.

A third relevant case, not reconcilable with Leonard R. on any basis, is In re Maurice S. (1979) 90 Cal.App.3d 190, 153 Cal.Rptr. 317, a case arising from juvenile court, which holds flatly that equal protection demands that section 2900.5 credits must be subtracted from terms of California Youth Authority confinement. The court's holding was based on Olivas, which it read to hold that whatever may be the apparent difference and purpose between a California Youth Authority commitment and adult confinement, the real purpose of each was punishment. Therefore, in the Maurice S. court's view, there was no rational basis for not granting precommitment credits to a minor committed to the California Youth Authority from juvenile court.

Maurice S. was based on the assumption that the length of a minor's term of confinement was the same as that of an adult convicted of a similar offense and similarly sentenced.1 The trouble with this analysis is that it does not take the totality of the differences between minor and adult confinement into account. Even if we entirely ignore the different purposes real or imagined of jail or prison as opposed to Youth Authority or camp confinement, the stark fact remains that a 36-month term under the Determinate Sentencing Act is different in kind from a 36-month maximum commitment to the California Youth Authority, let alone a 36-month maximum camp placement.2

Subject to certain specific credits e. g., Penal Code section 4019 the adult is sentenced to prison for a definite time from which any credit under section 2900.5 to which he may be entitled is subtracted an easy mathematical problem. In the minor's case, however, the minuend the period of confinement from which this credit is to be subtracted is unknown at the outset of the confinement. When, however, the actual length of confinement does become known, the minor is already on his way home and would not know what to do with section 2900.5 credits.

The reason lies in the statutory scheme for the release of California Youth Authority committees or minors placed in camps. If the minor is a California Youth Authority committee, he will be released under Welfare and Institutions Code section 1766, subdivision (f) whenever the California Youth Authority is satisfied “that such discharge is consistent with the protection of the public.” Where, in this scheme, would a 20-day credit fit in? Is the minor to be discharged 20 days before the discharge would be consistent with the protection of the public?

1 On the other hand if the minor has been placed in a camp, the order so placing him can be terminated by means of a petition under Welfare and Institutions Code section 778 if “it appears that the best interests of the child may be promoted” thereby.3 Again, does equal protection demand that the minor be released 20 days before his best interests may be promoted by such release?4

The truth is that when the release date of a person under confinement depends on such factors as “consistency with the protection of the public” or “ the best interests of the child,” it is nonsense, at best, to decree that the release shall take place 20 days earlier. There is, of course, a superficial temptation to hold that the 2900.5 credit should at least be available if the minor is not released before the maximum period of confinement has expired. Nevertheless, if we are right so far, there is no basis for such a reduction. The truly indeterminate nature of juvenile confinement be it in a camp setting or in a California Youth Authority facility does not change during its last days, weeks or months.

To use a tired metaphor just once more: we are being asked to hold that a pruning operation which the Legislature has decreed for apple trees must also be performed for the benefit of oranges. We refuse.



1.  “The minor's stated term of confinement at CYA is 36 months, the middle term for the principal offense. An adult convicted of a similar offense and similarly sentenced would also be confined for up to 36 months.” (Id., p. 193, 153 Cal.Rptr., p. 318.)

2.  We could possibly distinguish both Leonard R. and Maurice S. on the basis that those cases involved CYA commitments, while this case deals merely with camp placement. We believe, however, that the distinction would be without substance since the principle of Olivas that “confinement is confinement” extends to camp placements as well as to CYA commitments.

3.  Welfare and Institutions Code section 881, relating to camp placements, reads in part: “. . . As far as possible, the provisions of this chapter relating to commitments to the probation officer shall apply to commitments to such juvenile homes, . . .”

4.  Thus both California Youth Authority Commitments and camp placements contemplate terms that are truly indeterminate much more so than sentences under the former Indeterminate Sentence Law. (See In re Rodriguez (1975) 14 Cal.3d 639, 652-653, 122 Cal.Rptr. 552, 537 P.2d 384.)

KAUS, Presiding Justice.

ASHBY and HASTINGS, JJ., concur.

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