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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Roy Frank AUSTIN, Defendant and Appellant. IN RE: Roy Frank AUSTIN on Habeas Corpus.

Cr. 36899, Cr. 37564.

Decided: August 28, 1980

Quin Denvir, State Public Defender, and Richard Lennon, Deputy State Public Defender, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., William R. Weisman and Carla M. Singer, Deputy Attys. Gen., for plaintiff and respondent.

Appellant, Roy Frank Austin, appeals from an order of commitment to the Department of Youth Authority (YA) pursuant to Welfare and Institutions Code section 1731.5,1 and an order of commitment to YA upon revocation of his prior probation (Pen.Code, s 1203.2, subd. (d)), following a judgment of conviction of burglary (Pen.Code, s 459) based upon his plea of guilty. Appellant challenges (1) the imposition in both orders of the upper term as his maximum period of confinement; and (2) the failure of the trial court to give him presentence good time/work time credits.2 In a petition for a writ of habeas corpus, which has been heard concurrently with this appeal by an order of this court filed on April 29, 1980, he also asserts that under constitutional equal protection principles he is entitled to behavior credits for time served at YA under the order of commitment.

We agree with appellant as to each of his contentions. Therefore, for the reasons set forth below, we intend to reverse the order imposing the upper term and remand the case to the trial court for resentencing and calculation of presentence behavior credits earned. Furthermore, YA will be expected to recalculate appellant's maximum term in accordance with this decision.


On September 10, 1979, appellant and another, broke into a neighbor's home. They took money and jewelry, which they intended to sell. Apparently a car was to be exchanged for some of the jewelry.

Appellant was on probation for another offense at the time of this burglary. This three-year probation had been imposed after appellant pled guilty to receiving stolen property, a felony (Pen.Code, s 496), on or about August 8, 1978.

On October 12, 1979, an information charging appellant with the September 10, 1979 burglary was filed in superior court. Appellant subsequently pled guilty following proper waivers of his constitutional rights and the acknowledgement of the possible consequences of the plea.

In appellant's probation report the officer noted five aggravating circumstances and the absence of any mitigating circumstances. Therefore, the probation officer recommended that probation be denied. He recommended, however, that appellant be committed to YA for the middle rather than the upper term.

The trial judge read the probation report and, because of appellant's past record and the fact that he was on probation at the time of the burglary, followed the recommendation that probation be denied. She also followed the recommendation that he be sent to YA, but imposed the upper term stating:

“. . . The Court has read and considered the probation officer's report consisting of nine pages, which recommends a denial of probation and commitment to the Youth Authority, but, of course, when we sentence or commit him to Youth Authority, we have to impose we have to state what the maximum term is, and there was no plea bargain for less than the regular commitment time. I am prepared to follow that recommendation. . . .

“. . .

“THE COURT: I am following the recommendation of the probation officer, denying probation in this case in view of the fact that the defendant was on probation in another case when he committed this crime and has had numerous crimes involving the taking of property in his young life.

“. . .

“THE COURT: All right. As I said, I am denying probation because of the numerous crimes of this type that the defendant has committed. The defendant is committed to the Youth Authority. The maximum period he could be sentenced for under the law is three years. That doesn't mean he will be in that facility for that long. It just means that we have to state what the maximum time could be.”

Appellant's prior probation was revoked. He was committed to YA for a maximum term of three years, the upper term for receiving stolen property. (Pen.Code, ss 18, 496.) This term was to run concurrently with the three year maximum term imposed for the burglary. (Pen.Code, ss 18, 461, subd. (3).) He was credited with 102 days of presentence custody on the burglary and 132 days on the sentence imposed upon revocation of his probation for receiving stolen property.


1. The imposition of the upper term as appellant's maximum period of confinement was improper.

A person who was less than 21 years of age at the time of apprehension and has been, among other things, sentenced for more than 90 days imprisonment but less than life, may be committed to YA. YA must accept such commitment if it finds that its programs can materially benefit the youthful felon and that its facilities are adequate to accommodate him. (s 1731.5.)

Such person shall be committed for a term not to exceed the period for which he would have been imprisoned at state prison. Such term shall be determined according to Penal Code sections 1170 and 1170.1 and the applicable California Rules of Court. (Cal. Rules of Court, rule 453, subd. (a); People v. Franklin (1980) 102 Cal.App.3d 250, 253, 162 Cal.Rptr. 284.) Under Penal Code section 1170, subdivision (b), the court must impose the middle term “unless there are circumstances in aggravation or mitigation of the crime.” Section 1170, subdivision (c), requires that the judge state on the record the reasons for any sentence choice.

This procedure varies from that followed for juveniles committed to YA. The maximum period of commitment for a juvenile must be set at the upper term which could be imposed on an adult, irrespective of aggravating or mitigating circumstances. (See s 726; In re Eric J. (1979) 25 Cal.3d 522, 532-533, 159 Cal.Rptr. 317, 601 P.2d 549.)

Upon revocation of probation, if sentence has not previously been imposed and suspended, the court shall impose a sentence on the original offense for a term within the longest period for which the person could have been sentenced originally. The judge may in lieu of any other sentence commit an eligible person to YA. (See Pen.Code, s 1203.2, subds. (c), (d); People v. Billetts (1979) 89 Cal.App.3d 302, 309, 152 Cal.Rptr. 402.) In setting such sentence, the court shall consider, among other things, circumstances in aggravation and mitigation and shall set forth on the record reasons for imposing the upper or lower term. (Cal. Rules of Court, rules 433(c), 435.)

In this case, the trial judge ordered appellant's commitment to YA for a maximum term of three years for the burglary and three years for the previous offense of receiving stolen property, the sentences to run concurrently. Both of these sentences are the upper terms for the respective offenses. (Pen.Code, ss 18, 461, subd. (2), 496.)

In imposing these terms the trial judge stated only that she was following the probation officer's recommendation as to the burglary. The probation officer, however, while noting several aggravating circumstances, recommended only that probation be denied and the middle, not upper term, be imposed. The judge made no statement as to her reason for choosing the upper term upon her revocation of probation for the previous offense.

The trial judge appears to have followed the code section applicable to juveniles, section 726. While imposing sentence for the burglary she stated “when we sentence or commit him to Youth Authority, we have to impose we have to state what the maximum term is . . .” (Italics added.) She subsequently stated that: “(t)he maximum period he could be sentenced for under the law is three years. That doesn't mean he will be in that facility for that long. It just means that we have to state what the maximum time could be.”

It is within the trial judge's discretion to weigh the aggravating and mitigating circumstances and to impose an upper or lower term accordingly. In this case, the probation report noted several aggravating and no mitigating circumstances. Therefore, it apparently would not have been an abuse of discretion for the trial judge to have imposed the upper term on that basis. The judge's comments, however, indicate that she did not exercise her discretion at all, but rather erroneously believed that the law compelled her to impose the upper term despite the recommendation by the probation officer that the middle term be imposed.

Respondent argues that, since the trial judge expressly stated that she was following the probation officer's report and stated that probation was denied because of appellant's repeated criminal activities, it is clear that the judge intended to impose the upper term because of the aggravating circumstances outlined in the probation report. We disagree. The trial judge's statements are, at best, ambiguous. This is not, as respondent suggests, a case in which the judge clearly intended to impose an upper term but merely failed to slavishly adhere to ritualistic form. (See People v. Blessing (1979) 94 Cal.App.3d 835, 837-839, 155 Cal.Rptr. 780.) Additionally, as the record affirmatively reflects that the trial judge probably did not consider the relevant criteria in making the sentence choice (see Cal. Rules of Court, rule 409), such consideration cannot be presumed.

The trial judge made no clear statement on the record of the various aggravating circumstances, except to note appellant's past criminal record when denying probation for the burglary. As a result, there is no clear indication that the imposition of the upper term was based upon such circumstances. (But see People v. Powell (1980) 101 Cal.App.3d 513, 518-519, 161 Cal.Rptr. 803.)

The statutory requirement that a judge state on the record the reasons for making any sentence choice is to promote uniformity in sentencing and to enhance the ability of the appellate court to review the trial court's choice. (See People v. Turner (1978) 87 Cal.App.3d 244, 246-247, 150 Cal.Rptr. 807.) Since the record is ambiguous as to whether the trial judge erroneously believed she lacked discretion to impose any maximum sentence other than the upper term or was exercising her discretion in imposing it, we must remand the case for resentencing in compliance with the provisions of Penal Code sections 1170 and 1170.1 and the applicable California Rules of Court.

2. Appellant is entitled to have all behavior credits earned precommitment and at YA credited against his maximum period of confinement.

(a) Under constitutional principles of equal protection youthful felons at YA are entitled to earn behavior credits.

Constitutional equal protection requires that similarly situated people receive equal treatment where fundamental interests are involved, unless the state can demonstrate that unequal treatment of such people is necessary to achieve a compelling state interest. Personal liberty is one such fundamental interest. (See People v. Olivas (1976) 17 Cal.3d 236, 250-251, 131 Cal.Rptr. 55, 551 P.2d 375.)

Appellant is a member of the uniquely situated class of people who are adults tried in criminal court as adults, but who may be committed to YA instead of being sentenced to prison. Some members of this class of people are committed to YA pursuant to section 1731.5 and others are sentenced to state prison. Appellant contends that since his youthful counterparts, who are sentenced to state prison, are entitled to earn behavior credits, it is a denial of constitutional equal protection to refuse him the same credits if earned.

We agree. Our Supreme Court in Olivas held that youthful misdemeanants sent to YA could not constitutionally be held for a term longer than the maximum which could be imposed on a misdemeanant who had been sent to county jail. This was based upon the Court's holding that “personal liberty” is a fundamental interest and its determination that neither the admirable goals of rehabilitation of the young nor the “amenities” of YA, which are not present in county jail or state prison, are sufficient to justify prolonged “incarceration.” (See People v. Olivas, supra, 17 Cal.3d at pp. 239, 244, 253, 131 Cal.Rptr. 55, 551 P.2d 375.) This court in People v. Sandoval (1977) 70 Cal.App.3d 73, 138 Cal.Rptr. 609, subsequently held that youthful felons likewise could not be held at YA for terms longer than those of their counterparts in state prison. (See id. at pp. 90-91, 138 Cal.Rptr. 609.)

In Sandoval we further held that youthful felons at YA must receive credits pursuant to Penal Code section 2900.5. (Ibid.) We now hold that constitutional equal protection precludes the denial of behavior credits to felons at YA.

Respondent urges that the unequal treatment is necessary because behavior credits would interfere with YA's rehabilitative programs and disrupt YA's administrative system. In this context, respondent relies upon our Supreme Court's decision in People v. Saffell (1979) 25 Cal.3d 223, 157 Cal.Rptr. 897, 599 P.2d 92, in which the high court denied behavior credits to mentally disordered sex offenders (MDSO) committed to state hospitals. (Id. at p. 235, 157 Cal.Rptr. 897, 599 P.2d 92.)

Respondent's reliance upon Saffell is misplaced. MDSO's and youthful felons are not similarly situated. MDSO's are treated for “mental disorders” in a hospital setting, while youthful felons at YA are “rehabilitated” through educational and vocational training.

The Saffell court determined that the purposes of behavior credits were neither necessary for nor suited to the purposes and goals of MDSO commitment. Its determination was based upon the following five reasons: (1) that the concept of giving or taking away time credits might materially interfere with the treatment of individuals suffering from a mental disease, defect or disorder; (2) that the possibility of being transferred to state prison acts as a deterrent to criminal conduct; (3) that at least part of the good time credit may be earned in educational and rehabilitative programs which are not necessarily available at the state hospitals; (4) that the denial of the credits would necessitate a “panoply” of administrative requirements which would be too burdensome for state hospital officials and might interfere with treatment of patients; and (5) that since section 6316.2 permits extension where necessary of the commitment period of an MDSO, the granting of behavior credits would be “pointless.” (See id. at pp. 233-235, 157 Cal.Rptr. 897, 599 P.2d 92.)

On the other hand, the purposes of behavior credits are consistent with the purposes and goals of a YA commitment. The purposes of these credits are to encourage prisoners “to conform to prison regulations and to refrain from engaging in criminal, particularly assaultive, acts while in custody” and “to make an effort to participate in what may be termed ‘rehabilitative’ activities.” (See id. at p. 233, 157 Cal.Rptr. at p. 903, 599 P.2d at p. 97.) These purposes are clearly in line with the fundamental goal and purpose of YA the rehabilitation of youths. (s 1700.)

Thus, unlike the state hospitals, YA has educational, vocational and rehabilitative programs, enrollment in which is not only available but may be compelled. (See s 1768; Cal.Admin.Code, tit. 15, ss 4760, et seq.) Furthermore, progress in these programs may be rewarded by an advanced parole consideration date (see Cal.Admin.Code, tit. 15, s 4621) as well as early discharge from control. (See s 1766.)

Similarly, the giving or taking of credits is not inappropriate as a means of encouraging youthful felons to reform their behavior. Currently, an individual's YA parole consideration date may be moved up or back as the individual's behavior and rehabilitative progress warrants. (See Cal.Admin.Code, tit. 15, ss 4621, 4634, 4945, subd. (j).) Prior to extending a ward's parole consideration date or taking other disciplinary action based upon a ward's inappropriate behavior, YA must follow detailed administrative procedures. (See Cal.Admin.Code, tit. 15, ss 4630, et seq.) Thus, unlike the state hospital staff, YA is clearly equipped to, and does, handle a “panoply” of administrative procedures.

Additionally, as noted above, unlike the MDSO, a youthful felon may not be kept within the control of YA beyond the period for which he could have been controlled by state prison authorities. (See People v. Franklin, supra, 102 Cal.App.3d at pp. 253-254, 162 Cal.Rptr. 284; People v. Sandoval, supra, 70 Cal.App.3d at p. 91, 138 Cal.Rptr. 609.) Therefore, while his term is indeterminate in that he may possibly be released early, there is a set maximum term against which behavior credits could be applied. (See s 1766; People v. Franklin, supra, 102 Cal.App.3d at p. 253, 162 Cal.Rptr. 284.)

Like the MDSO, the youthful felon committed to YA may be subsequently resentenced to state prison if he is determined to be unamenable to the YA's programs. (See s 1737.1.) The fact that such a possibility may provide an alternate incentive for good behavior, is insufficient, standing alone, to establish that deprivation of behavior credits to youthful felons is necessary. State prisoners themselves have the additional negative incentive of potential additional criminal prosecution if they engage in the criminal or violent behavior against which good time credit is designed to protect.

Therefore, assuming the state has a compelling interest in achieving the primary goal of YA the rehabilitation of youths the denial of behavior credits (which in no way interferes with but rather promotes this goal) to youthful felons simply because they have been found amenable to YA's rehabilitative programs, is unnecessary.3

Additionally, we note as did our Supreme Court in Olivas, that unequal treatment of youthful felons would result in such persons and their attorneys being confronted with a Hobson's Choice. The youth and his attorney would be faced with the onerous alternatives of arguing that the youth is incorrigible and therefore should neither get probation nor be committed to YA and thereby insure a shorter maximum period of control, or arguing that the youth can reform, and thus subject him to a potentially longer period of confinement. (See People v. Olivas, supra, 17 Cal.3d at pp. 256-257, 131 Cal.Rptr. 55, 551 P.2d 375.)

Accordingly, we hold that constitutional equal protection requires that youthful felons who are committed to YA pursuant to section 1731.5 must be granted behavior credits if earned.4 In so doing we note that this will in no way inhibit YA from discharging the youth as soon as he is rehabilitated and may have no impact upon the youth who is released long before he serves his maximum period of confinement. We further note that, although there is a presumption that behavior credits are due, in the event that a youth has not earned them, such credits can be denied him and his entire maximum term could be served.

(b) Appellant is entitled to behavior credit earned during presentence custody.

Our Supreme Court in People v. Sage (1980) 26 Cal.3d 498, (mod. at 27 Cal.3d 144a), 165 Cal.Rptr. 280, 611 P.2d 874 (as modified), held that constitutional equal protection demands that state prisoners who were in presentence custody receive behavior credit for such time spent in county jail. This holding was based upon the fact that unless such presentence credit was given, state prisoners who were not held in presentence custody would earn behavior credits pursuant to Penal Code sections 2930-2932 for their entire term, while those who served presentence time would not. (Id. at pp. 505-507, 165 Cal.Rptr. 280, 611 P.2d 874.)

Accordingly, since we have held that youthful felons at YA are entitled to behavior credits at YA, constitutional equal protection demands that those youthful felons who serve part of their term in presentence custody at county jail be granted such behavior credits.

Moreover, the maximum term of commitment to YA for a youthful felon committed pursuant to section 1731.5 must be calculated as though he had been sentenced to state prison. (See Cal. Rules of Court, rule 453(a); People v. Franklin, supra, 102 Cal.App.3d at p. 253, 162 Cal.Rptr. 284.) Accordingly, since under Sage appellant would be entitled to presentence behavior credits, had he been sentenced to state prison, such credits should be calculated in the computation of his maximum term of commitment.5


The orders under appeal are reversed and the cause remanded for resentencing in accordance with this opinion. The Department of Youth Authority is expected to recalculate appellant's maximum term to reflect credit for all good time and work time earned. The writ of habeas corpus is granted to the extent specified in this opinion.


1.  Unless otherwise indicated all code sections cited herein are from the Welfare and Institutions Code.

2.  Hereinafter good time/work time credits will be referred to jointly as behavior credits.

3.  We note that the Legislature has recently enacted an urgency measure which, among other things, extends behavior credits to persons committed to the California Rehabilitation Center (CRC). (See Stats. 1980, ch. 822, s 8.) We further note that a commitment to CRC, like one to YA, has as a prime purpose the rehabilitation of the person committed. (See s 3000.)

4.  We note that the court in People v. Vasquez (1979) 94 Cal.App.3d 42, 49, 156 Cal.Rptr. 235, assumed that YA would be compelled under Olivas to award a youthful felon all behavior credits earned.

5.  In this connection we note that two court of appeal decisions have granted behavior credits to juveniles for time spent in presentence custody. (See In re Eugene R. (1980) 107 Cal.App.3d 605, 620-621, 166 Cal.Rptr. 219; In re Maurice H. (1980) 107 Cal.App.3d 305, 314-315, 166 Cal.Rptr. 213.)

COBEY, Acting Presiding Justice.

ALLPORT and POTTER, JJ., concur.