PEOPLE v. SIMMEN

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Court of Appeal, First District, Division 4, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Jeffery Adam SIMMEN, Defendant and Appellant.

Cr. 20019.

Decided: June 15, 1981

Quin Denvir, State Public Defender, Paulino G. Duran, Deputy State Public Defender, San Francisco, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Gloria F. DeHart, Thomas A. Brady, Deputy Attys., Gen., San Francisco, for plaintiff and respondent.

Jeffery Adam Simmen appeals from a judgment of imprisonment entered after he pleaded nolo contendere to a charge of rape (Pen.Code, § 261, subd. 3) with the use of a knife (Pen.Code, § 12022, subd. (b)).

Initially the court committed appellant to the California Youth Authority for “the low term of two years on the base term, which will be enhanced by use of a weapon for one more year, a total of three years.”   Subsequently, the court modified its order to reflect the correct length of the lower term 1 and committed appellant for a total of four years:  three years for the rape conviction and one year for use of the weapon.

About seven months later, the Youth Authority Board acting pursuant to Welfare and Institutions Code section 1737.1, found appellant to be “an improper person to be retained” under their jurisdiction.   Upon his return to superior court he was sentenced to state prison for the upper term of five years, enhanced one year for use of a weapon.

Appellant admits that when he was returned from the Youth Authority the trial court had jurisdiction to sentence him to state prison.   His sole contention is the court lacked jurisdiction to then impose the upper term.   He sets forth a proposition he purports to glean from the 1940 California Supreme Court decision of People v. McAllister (1940) 15 Cal.2d 519, 102 P.2d 1072:  “In general, once sentence is pronounced and the defendant has commenced serving his sentence, the trial court loses jurisdiction over the matter.” 2  This is not a situation governed by the generic.   Instead, quite specific legislation, section 1737.1 of the Welfare and Institutions Code, provides in plain English that when a person is returned to the committing court:  “The court may then commit him to a state prison or sentence him to a county jail as provided by law for punishment of the offense of which he was convicted.   The maximum term of imprisonment for a person committed to a state prison under this section shall be a period equal to the maximum term prescribed by law for the offense of which he was convicted less the period during which he was under the control of the Youth Authority.”  (Emphasis added.)

The only reasonable interpretation of this section is that it confers jurisdiction on the trial court to sentence a minor returned from the Youth Authority to any term prescribed by law.

No other question is before us.

The judgment is affirmed.

I concur in the reasoning and the conclusion of the majority opinion but desire to supplement that reasoning.

Contending that the corrected commitment amounted to a sentence “as though a sentence of imprisonment were to be imposed,” appellant argues that the court lacked jurisdiction to impose the upper term when pronouncing judgment after the Youth Authority returned appellant as unfit.   Respondent rejoins that the second commitment was also incorrect in that the court was not authorized to limit the period of Youth Authority confinement1 to less than the maximum Department of Corrections sentence provided by law for the offense.   Respondent maintains that the term of confinement should not be specified in a Youth Authority commitment issued by an adult court because the defendant is receiving a disposition other than a state prison sentence.2  Respondent further argues that to apply determinate sentencing concepts in a Youth Authority commitment is contrary to the statute granting discretionary power to the Youth Authority to determine how long a youthful offender should be held in confinement.3  An adult committed to the Department of Corrections for a felony must be given the middle term, in the absence of aggravating or mitigating circumstances.  (Pen.Code, § 1170, subd. (b).)  Adults convicted in the criminal courts are sentenced to prison as punishment.   This purpose of punishment has been determined by the Legislature to be served best by a term proportionate to the seriousness of the offense with provision for uniformity in sentencing offenders who commit the same offense under similar circumstances.  (Pen.Code, § 1170, subd. (a)(1).)   Although the duration of a juvenile court commitment to the Youth Authority may not exceed the upper base term for an adult convicted of the same offense, subject to that limitation the period of confinement is indeterminate.  (In re Eric J. (1979) 25 Cal.3d 522, 532, 159 Cal.Rptr. 317, 601 P.2d 549;  see Welf. & Inst.Code, §§ 726, 731.)   This treatment of minors adjudged wards of the juvenile court recognizes that punishment is not the primary purpose of detention;  minors are committed to the Youth Authority for the purpose of treatment and rehabilitation.  (In re Eric J., supra, 25 Cal.3d 522, 531, 159 Cal.Rptr. 317, 601 P.2d 549;  In re Aline D. (1975) 14 Cal.3d 557, 567, 121 Cal.Rptr. 816, 536 P.2d 65;  see Welf. & Inst.Code, § 734.)

A young person such as appellant, found guilty of a felony by an adult court, is in an intermediate position.   Although subject to punishment as an adult, he can receive rehabilitative treatment if the Youth Authority accepts a “youthful offender” commitment on the basis that he can be materially benefited by “reformatory and education discipline․”  (Welf. & Inst.Code, § 1731.5.)   The question whether such a commitment is determinate, as in a prison sentence, or indeterminate (subject to a maximum gauged by the maximum comparable felony term) as in a juvenile court commitment to the Youth Authority, is open to legislative determination.

The Legislature has explicitly provided that a juvenile court commitment is automatically for the upper term without the need to follow the provisions of Penal Code section 1170, subdivision (b) (Welf. & Inst.Code, § 726);  no such provision exists with respect to commitments to the Youth Authority by adult courts.  (People v. Jones (1980) 111 Cal.App.3d 597, 604, 168 Cal.Rptr. 28.)   But a commitment to the Youth Authority does not fall within the determinate sentencing provisions (see Pen.Code, § 1170, subd. (a)(2), quoted in fn. 3, ante).   Further, any requirement that the trial court pronounce a determinate sentence in issuing a youthful offender commitment would contradict the statute vesting discretion in the Youth Authority for its rehabilitative efforts.  (See Welf. & Inst.Code, § 1766, subd. (b), quoted in fn. 4, ante.)   The statutes are fully harmonious only if they are construed as permitting indeterminate confinement for youthful offenders committed to the Youth Authority under Welfare and Institutions Code section 1731.5.

I recognize that rule 453(a), California Rules of Court, states that the trial court is to calculate the term of a youthful felon's commitment to the Youth Authority as if he had been sentenced to state prison.4  But the rule conflicts with the statutory authority concerning Youth Authority commitments.  (See Welf. & Inst.Code, § 1766, subd. (b).)  Therefore, the rule is invalid.  (See Cal.Const., art. VI, § 6.) 5

After a youthful offender has been committed to the Youth Authority, the trial court is revested with discretion to set the term of imprisonment if the Youth Authority decides not to retain the offender for rehabilitative treatment.   The “court may then commit him to a state prison or sentence him to a county jail as provided by law for punishment of the offense of which he was convicted.   The maximum term of imprisonment for a person committed to a state prison under this section shall be a period equal to the maximum term prescribed by law for the offense of which he was convicted less the period during which he was under the control of the Youth Authority.”  (Welf. & Inst.Code, § 1737.1.)   It is at this point, if the court chooses a prison sentence, that the Uniform Determinate Sentencing Act of 1976 comes into play.   Because the original Youth Authority commitment was for a period up to the maximum provided by law, the full range of sentencing options under Penal Code section 1170 is properly open to the court upon the youthful felon's return as unfit for Youth Authority treatment.   The prison sentence imposed here did not exceed the maximum term prescribed by law.   The trial court's determination that appellant “should be committed to the authority was necessarily tentative in nature under our statutory scheme since the authority is expressly empowered to refuse such a commitment.”  (Bryan v. Superior Court (1972) 7 Cal.3d 575, 583–584, 102 Cal.Rptr. 831, 498 P.2d 1079, cert. den. 410 U.S. 944, 93 S.Ct. 1380, 35 L.Ed.2d 610.) 6  I conclude that the “corrected” three year commitment had no effect on the term of confinement and that the court acted within its powers when it pronounced judgment in compliance with the Determinate Sentencing Act after appellant was rejected by the Youth Authority.

FOOTNOTES

1.   The charged offense occurred on or about April 19, 1978.   At that time rape was punishable by imprisonment in the state prison for 3, 4 or 5 years.  (Pen.Code, § 264, amended by Stats. 1976, ch. 1139, § 154, p. 5106, operative July 1, 1977.)

2.   The quotation is from appellant's brief, not from the McAllister decision.

1.   Welfare and Institutions section 1731.5 provides in part:“[A] court may commit to the authority any person convicted of a public offense who comes within subdivisions (a), (b), and (c), or subdivisions (a), (b), and (d), below:“(a) Is found to be less than 21 years of age at the time of apprehension.“(b) Is not sentenced to death, imprisonment for life, imprisonment for 90 days or less, or the payment of a fine, or after having been directed to pay a fine, defaults in the payment thereof, and is subject to imprisonment for more than 90 days under the judgment.“(c) Is not granted probation.“(d) Was granted probation and probation is revoked and terminated.“The Youth Authority shall accept a person committed to it pursuant to this article if it believes that the person can be materially benefited by its reformatory and educational discipline, and if it has adequate facilities to provide such care.”

2.   Penal Code section 1170, subdivision (a)(2), provides in part:  “In any case in which the punishment prescribed by statute for a person convicted of a public offense is a term of imprisonment in the state prison of․three, four, or five years ․ the court shall sentence the defendant to one of the terms of imprisonment specified unless such convicted person is given any other disposition provided by law․”

3.   Welfare and Institutions Code section 1766 provides in part:  “When a person has been committed to the Youth Authority, the Youthful Offender Parole Board may [¶] (a) Permit him his liberty under supervision and upon such conditions as it believes best designed for the protection of the public.  [¶] (b) Order his or her confinement under such conditions as it believes best designed for the protection of the public, except that a person committed to the Youth Authority pursuant to Section ․ 1731.5 may not be held in physical confinement for a total period of time in excess of the maximum period of imprisonment which could be imposed upon an adult convicted of the offense or offenses ․ which resulted in the commitment of the young adult to the Youth Authority ․ [¶] (c) Order reconfinement or renewed release under supervision as often as conditions indicate to be desirable․ [¶] (f) Discharge him or her from its control when it is satisfied that such discharge is consistent with the protection of the public.”

4.   “When a defendant is convicted of a crime for which sentence could be imposed under section 1170 and the court orders that he be committed:  [¶] (a) To the California Youth Authority pursuant to Welfare and Institutions Code section 1731.5, the order of commitment shall specify the term of imprisonment to which defendant would have been sentenced.   The term shall be determined as provided by sections 1170 and 1170.1 and these rules, as though a sentence of imprisonment were to be imposed” (Cal.Rules of Court, rule 453(a);  emphasis added);  “shall” is mandatory (Cal.Rules of Court, rule 407(a)).   The advisory committee comment to rule 453 indicates that the trial court must elect a term in order to clarify the maximum commitment period.   The Advisory Committee Comment to rule 453 provides in part:  “Under the Uniform Determinate Sentencing Act, the court's discretion as to length of term leaves doubt as to the maximum term when only the record of convictions is present.”  (See Deering's Ann.Cal.Rules of Court (1980 ed.) rule 453, p. 130.)

5.   I further recognize that other cases have applied rule 453(a) in similar circumstances (see People v. Jones, supra, 111 Cal.App.3d 597, 604, 168 Cal.Rptr. 28;  People v. Walling, supra, 105 Cal.App.3d 893, 896, 164 Cal.Rptr. 681;  People v. Franklin (1980) 102 Cal.App.3d 250, 253, 162 Cal.Rptr. 284.)   However, these cases did not consider the validity of the rule in the light of its conflict with the statutes.

6.   Although the concept of continuing jeopardy announced in Bryan v. Superior Court was rejected in the area of retrials (see Breed v. Jones (1975) 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346;  In re Bryan (1976) 16 Cal.3d 782, 129 Cal.Rptr. 293, 548 P.2d 693), that concept may be applied in the sentencing area in light of United States v. DiFrancesco (1980) ––– U.S. ––––, ––––, 101 S.Ct. 426, 433, 66 L.Ed.2d 328.

POCHÉ, Associate Justice.

RATTIGAN, J., concur.