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IN RE: Jeanice D.

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Court of Appeal, Fifth District, California.

IN RE: Jeanice D., a Minor, on Habeas Corpus.

Cr. 4543.

Decided: November 21, 1979

Quin Denvir, State Public Defender, and Mark E. Cutler, Deputy State Public Defender, for petitioner. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., James T. McNally, Ramon M. de la Guardia and Roger E. Venturi, Deputy Attys. Gen., for respondent.

OPINION

The above named minor was tried as an adult and found guilty of first degree murder. She petitions this court for a writ of habeas corpus on the ground that the superior court exceeded its jurisdiction in sentencing her to state prison without first complying with the requirements of Welfare and Institutions Code section 707.2 which mandates the sentencing court to remand a minor to the California Youth Authority for evaluation and a report prior to sentencing the minor to state prison.1 Petitioner contends the failure to refer her to CYA for evaluation and a report deprived the trial court of authority to impose a prison sentence. We agree.

The question whether the trial court was required by Welfare and Institutions Code section 707.2 to refer petitioner to CYA for a diagnostic report before it could sentence her to prison turns on the question whether Welfare and Institutions Code section 1731.5 precludes a Youth Authority commitment for petitioner. This section provides in pertinent part: “. . . a court may commit to the (Youth Authority) any person convicted of a public offense who . . . (i)s found to be less than 21 years of age at the time of apprehension (and is) not sentenced to death, Imprisonment for life, . . .”. Penal Code section 190 sets forth the possible sentences for first degree murder: “Every person guilty of murder in the first degree shall suffer death, confinement in state prison for life without possibility of parole, or confinement in the state prison for a term of 25 years to life. . . .” Since petitioner was convicted of first degree murder without special circumstances and was sentenced to prison for the term prescribed by law, we must decide whether the term “25 years to life” constitutes “imprisonment for life” within the meaning of Welfare and Institutions Code section 1731.5 so as to preclude a Youth Authority commitment. If it does, then the trial court was not required to perform the futile act of remanding petitioner to CYA for a diagnostic evaluation; on the other hand, if petitioner's sentence to prison for a term of 25 years to life does not constitute a life term within the meaning of Welfare and Institutions Code section 1731.5, then the trial court was required to send petitioner to CYA for a diagnostic evaluation.

The fundamental tenets of statutory interpretation are set forth in Morse v. Municipal Court (1974) 13 Cal.3d 149, 156, 118 Cal.Rptr. 14, 17-18, 529 P.2d 46, 49-50:

“. . . appellate courts first examine the language of the code section to determine whether the words used unequivocally express the Legislature's intent. If no ambiguity, uncertainty, or doubt about the meaning of the statute appear, the provision is to be applied according to its terms without further judicial construction. (E. g., People v. Baker (1968) 69 Cal.2d 44, 50, 69 Cal.Rptr. 595, 442 P.2d 675 . . ., emphasizing that the plain meaning of words used is not to be disregarded.)

“When the language of the section is on its face ambiguous or leaves doubt, however, the court must resort to extrinsic aids to ascertain the purpose behind the statute and give the provision a judicially created meaning commensurate with that purpose. (E. g., People v. Carroll (1970) 1 Cal.3d 581, 584, 83 Cal.Rptr. 176, 463 P.2d 400 . . ., holding that penal statutes must be interpreted in light of the objective sought to be achieved as well as the evil sought to be averted; cf. In re Estrada (1965) 63 Cal.2d 740, 746, 48 Cal.Rptr. 172, 408 P.2d 948. . . .)”

Penal Code section 190 is clear on its face: it establishes an Indeterminate sentence of from 25 years to life imprisonment for first degree murder. Such a sentence obviously does not require imprisonment for life. In People v. Ralph (1944) 24 Cal.2d 575, 150 P.2d 401, 403, the Supreme Court ruled: “. . . for the purposes of the Youth Authority Act, (a defendant) could not be held to have been ‘sentenced to * * * imprisonment for life’ unless the sentence prescribed by law carried a Minimum or fixed punishment of life imprisonment.” (Id., at p. 580, 150 P.2d at p. 403, emphasis added.) The Ralph court held that the defendants who had been sentenced for first degree robbery for “not less than five years” could be committed to CYA because they had not in “literal actuality” been sentenced to life imprisonment (24 Cal.2d at p. 582, 150 P.2d 401). The court applied the rule of statutory interpretation that language in a penal law reasonably susceptible of two constructions should be construed most favorably to the offender (Id., at p. 581, 150 P.2d 401; see also People v. Superior Court (Douglass) (1979) 24 Cal.3d 428, 435, 155 Cal.Rptr. 704, 595 P.2d 139). The court emphasized that the Youth Authority Act was to be liberally interpreted in conformity with its purposes of substituting for retributive punishment, methods of training and treatment directed toward rehabilitation of youthful offenders (24 Cal.2d at p. 580, 150 P.2d 401). Although People v. Ralph was decided when California's indeterminate sentencing law was still in effect, the ratio decidendi of the opinion is the liberal interpretation of the Youth Authority Act as intended by the Legislature (Id., at p. 577, 150 P.2d 401; Welf. & Inst. Code, s 1700). Since even today the purpose of a CYA commitment is rehabilitation rather than punishment (see In re Aline D. (1975) 14 Cal.3d 557, 567, 121 Cal.Rptr. 816, 536 P.2d 65; In re Eric J. (1979) —-Cal.3d —-, 159 Cal.Rptr. 317, 601 P.2d 549, a liberal interpretation of the Youth Authority Act dictates that the “imprisonment for life” exclusion in section 1731.5 be Strictly construed to the end that all minors not positively excluded from Youth Authority commitment should be considered for such commitment.

Respondent asks this court to construe the language of Penal Code section 190 providing for a sentence of “25 years to life” for first degree murder as a life sentence with a fixed date for parole eligibility of 25 years. Respondent contends that this interpretation would be consistent with the purpose of the 1978 ballot initiative which amended section 190 to increase the penalties for first and second degree murder.2 To do otherwise, respondent argues, would be to thwart the will of the voters by making minors who commit first degree murder eligible for CYA commitment when those same minors would have been ineligible under the previous law (see People v. Chi Ko Wong (1976) 18 Cal.3d 698, 724-25, 135 Cal.Rptr. 392, 557 P.2d 976). However, to construe Penal Code section 190 in the fashion urged by respondent would be to go beyond the clear meaning of the words used in the statute “25 years to life” requires no interpretation as to the minimum length of the sentence. Furthermore, to construe Penal Code section 190 as urged by respondent would be to speculate as to what effect, if any, the people intended by the initiative measure insofar as its effect on a minor's qualification for CYA commitment.3 Nothing on the face of Penal Code section 190 as amended or in the initiative measure itself indicates that the people intended to nullify the provisions of Welfare and Institutions Code section 707.2. We will presume that the drafters were aware of section 707.2 when proposing the initiative measure to amend Penal Code section 190. We will also presume that a statutory amendment is made in the light of established decisional law, in this case, People v. Ralph, supra, 24 Cal.2d 575, 150 P.2d 401.

For these many reasons, we cannot construe Penal Code section 190 as calling for a life sentence with a fixed date for parole eligibility of 25 years. If the Legislature should believe that our interpretation of the meaning of the “25 years to life” term provided in Penal Code section 190 works an undesirable result, it can easily amend the Welfare and Institutions Code to provide that a minor convicted of first degree murder shall be ineligible for CYA commitment, thereby avoiding the necessity of referring the minor to the Youth Authority for evaluation and report.

Let the writ of habeas corpus issue. The trial court is directed to recall the petitioner from state prison and to refer her to the California Youth Authority for evaluation and report and thereafter to exercise its commitment discretion as required by the provisions of Welfare and Institutions Code section 707.2.

FOOTNOTES

1.  Section 707.2 provides: “Prior to sentence, the court of criminal jurisdiction may remand the minor to the custody of the California Youth Authority for not to exceed 90 days for the purpose of evaluation and report concerning his amenability to training and treatment offered by the Youth Authority. No minor who was under the age of 18 years when he committed any criminal offense and who has been found not a fit and proper subject to be dealt with under the juvenile court law Shall be sentenced to the state prison unless he has first been remanded to the custody of the California Youth Authority for evaluation and report pursuant to this section and the court finds after having read and considered the report submitted by the Youth Authority that the minor is not a suitable subject for commitment to the Youth Authority.” (Emphasis added.)

2.  The Legislative Analyst's Analysis of Proposition 7 is contained in the Voters Handbook for the November 7, 1978, election and provides in part:“Background: Under existing law, a person convicted of First degree murder can be punished in one of three ways: (1) by death, (2) by a sentence of life in prison without the possibility of parole, or (3) by a life sentence with the possibility of parole, in which case the individual would become eligible for parole after serving seven years. A person convicted of second degree murder can be sentenced to 5, 6, or 7 years in prison. Up to one-third of a prison sentence may be reduced through good behavior. Thus, a person sentenced to 6 years in prison may be eligible for parole after serving 4 years.“Proposal: This proposition would: (1) increase the penalties for first and second degree murder . . . .“The measure provides that individuals convicted of first degree murder and sentenced to life imprisonment shall serve a minimum of 25 years, less whatever credit for good behavior they have earned, before they can be eligible for parole. Accordingly, anyone sentenced to life imprisonment would have to serve at least 16 years and eight months. The penalty for second degree murder would be increased to 15 years to life imprisonment. A person sentenced to 15 years would have to serve at least 10 years before becoming eligible for parole.”

3.  Also, if we accept respondent's interpretation, it would logically follow that minors convicted of Second degree murder would also be excluded from Youth Authority commitment, since under Penal Code section 190, as amended, they are subjected to a term of imprisonment of “15 years to life.” This would contradict long established law. (See former Pen.Code, s 190.)

FRANSON, Associate Justice.

GEORGE A. BROWN, P. J., and HOPPER, J., concur.

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