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IN RE: James Milton SMITH on Habeas Corpus. (1965)

District Court of Appeal, Third District, California.

IN RE: James Milton SMITH on Habeas Corpus.

Cr. 3822.

Decided: October 21, 1965

Robert K. Patch, Sacramento, Court-Appointed, for appellant. Thomas C. Lynch, Atty. Gen., by Doris H. Maier, Asst. Atty. Gen., and Raymond M. Momboisse, Deputy Atty. Gen., for respondent.

Smith, who was convicted of a violation of Penal Code section 4501 (aggravated assault by a prisoner serving a sentence of less than life), petitions for a writ of habeas corpus seeking his discharge from custody. Smith contends his conviction was invalid in that at the time of the assault he was a ward of the California Youth Authority and as such could not be serving a sentence within the meaning of Penal Code section 4501 as the section read prior to its amendment in 1963.

In December 1959, after being convicted of attempted robbery, Smith, then 19 years of age, was committed to the Youth Authority and confined in the Correctional Training Facility at Soledad. In April of 1962 Smith was administratively transferred by the Authority to San Quentin Prison as an Authority case without being returned to the trial court for resentencing. (See Wife. & Inst. Code, § 1737.1.) In April 1964 he was convicted of ‘assault by a prisoner’ and sentenced to state prison for the term prescribed law, and is presently confined in Folsom State Prison. In April of 1964 Smith was discharged from his Youth Authority commitment.

The commitment to the California Youth Authority was pursuant to the provisions of section 1731.5 of the Welfare and Institutions Code, which reads as follows:

‘After certification to the Governor as provided in this article a court may refer to the authority any person convicted of a public offense who comes within all of the following description:

‘(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.

‘If the authority believes that any person referred to it as provided in this section can be materially benefited by the procedure and discipline of the authority, and that proper and adequate facilities exist for the care of such person, it shall so certify to the court. The court shall thereupon commit said person to the authority.’

The Youth Authority may thereafter transfer a ward to a state prison for care and special treatment. Section 1753 of the Welfare and Institutions Code provides:

‘For the purpose of carrying out its duties, the Authority and the director are authorized to make use of law enforcement, detention, probation, parole, medical, educational, correctional, segregative and other facilities, institutions and agencies, whether public or private, within the State. The director may enter into agreements with the appropriate public officials for separate care and special treatment in existing institutions of persons subject to the control of the Authority.’

Section 1700 of the Welfare and Institutions Code provides:

‘The purpose of this chapter [Youth Authority Act] is to protect society more effectively by substituting for retributive punishment methods of training and treatment directed toward the correction and rehabilitation of young persons found guilty of public offenses. To this end it is the intent of the Legislature that the chapter be liberally interpreted in conformity with its declared purpose.’ (Stats.1941, ch. 937.)

At the time Smith was placed in San Quentin Prison by the Youth Authority, section 1737.1 of the Welfare and Institutions Code had been enacted and it reads as follows:

‘Whenever any person who has been charged with or convicted of a public offense and committed to the Authority appears to the Authority, either at the time of his presentation or after having become an inmate of any institution or facility subject to the jurisdiction of the Authority, to be an improper person to be retained in any such institution or facility, or to be so incorrigible or so incapable of reformation under the discipline of the Authority as to render his retention detrimental to the interests of the Authority and the other persons committed thereto, the Authority may return him to the committing court. In the case of a person convicted of a public offense, said 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. * * *’ (Emphasis added.)

In In re Keller, 232 A.C.A. 637, at pages 641–642, 42 Cal.Rptr. 921, at pages 924–925, this court in deciding an analogous case held:

‘The California Youth Authority is an administrative agency of the executive branch of state government and not possessed of judicial power. (In re Lee, 177 Cal. 690, 171 P. 958; In re Larsen, 44 Cal.2d 642, 283 P.2d 1043.) The judicial power of the state (exclusive of the quasi-judicial power vested in some state agencies) is vested in the Senate, sitting as a court of impeachment, in a Supreme Court, district courts of appeal, superior courts, municipal courts, and justice courts. (Cal.Const., art. VI, sec. 1.)

‘The judicial power is generally power to adjudicate on legal rights of persons or property. (People v. Bird, 212 Cal. 632, 300 P. 23.)

‘Thus we see that applicant was placed in San Quentin Prison by the California Youth Authority as a means of accomplishing the purposes of the Youth Authority Act, to-wit, training and treatment directed towards his rehabilitation and was never returned to the committing trial court for further commitment under the law either to a state prison or to a county jail for the punishment of the offense of which he was convicted.’

Commitment by the trial court to the California Youth Authority is not analogous to a commitment by said court to a state prison. (In re Keller, supra.)

Prior to its amendment in 1963, Penal Code section 4501 provided that:

‘Every person undergoing a sentence of less than life in a State prison of this State who with malice aforethought, commits an assault upon the person of another with a deadly weapon or instrument, or by means of force likely to produce great bodily injury, shall be guilty of a felony and shall be imprisoned in the state prison not less than one year.’ (Emphasis added.)

The section was amended in 1963 by revising the first sentence to read:

‘Every person confined in a state prison of this State except one undergoing a life sentence who commits an assault * * *.’ (Emphasis added.)

The ultimate issue presented, whether Smith at the time of the assault was a person undergoing a sentence of less than life in a state prison, is one of statutory construction embodied in the question whether, when Penal Code section 4501 was amended in 1963, the Legislature was clarifying its previous enactment and emphasizing that when it enacted section 4501 of the Penal Code and referred to a person ‘undergoing a sentence of less than life in a state prison’ it in fact meant every person confined in a state prison, or whether it was expressing a new intent.

At this point we note the holding of the court in Walsh v. Dept. of Alcoholic Bev. Control, 59 Cal.2d 757, 764, 31 Cal.Rptr. 297, 301, 382 P.2d 337, 341: ‘It is fundamental that penal statutes shall not be enlarged upon by the courts. ‘When language which is reasonably susceptible of two constructions is used in a penal law ordinarily that construction which is more favorable to the offender will be adopted. In other words, criminal statutes will not be built up ‘by judicial grafting upon legislation. * * * [I]t is also true that the defendant is entitled to the benefit of every reasonable doubt, whether it arise out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute.’' (People v. Ralph, (1944) 24 Cal.2d 575, 581[2], 150 P.2d 401, quoting from Ex parte Rosenheim (1890) 83 Cal. 388, 391, 23 P. 372; accord, In re Tartar (1959) 52 Cal.2d 250, 256[9]–257[10], 339 P.2d 553, and cases there cited.) Indeed, it is ‘the policy of California (see, e. g., People v. Stuart (1956) 47 Cal.2d 167, 175[7] [302 P.2d 5, 55 A.L.R.2d 705]) to construe and apply penal statutes as favorably to the defendant as the language of the statute and the circumstances of its application may reasonably permit.’ (Chessman v. Superior Court (1958) 50 Cal.2d 835, 843[6], 330 P.2d 225.)' (See also People v. Rodriguez, 222 Cal.App.2d 221, 227, 34 Cal.Rptr. 907.)

The Supreme Court in In re Herrera, 23 Cal.2d 206, 214, 143 P.2d 345, 349, held that when a defendant is committed to the Youth Authority after conviction of a felony his ‘commitment is a judicial determination of the fact of defendant's conviction and a pronouncement of the sentence for the offense, namely, commitment to the Authority for the term prescribed by law, and is therefore the court's judgment and sentence of the convict * * * and is appealable.’

In People v. Scherbing, 93 Cal.App.2d 736, 739, 209 P.2d 796, 798, the court held that when a person is ‘committed’ by the trial court to the Youth Authority he may be transferred by the Youth Authority to a state prison and he is thus lawfully committed to a ‘state prison’ as that term is used in section 4502 of the Penal Code: ‘A ‘commitment,’ in the legal sense, may be issued, lawfully, by other than a judicial body.'

In People v. Temple, 203 Cal.App.2d 654, 21 Cal.Rptr. 633, the court held that a person committed by the trial court to the Youth Authority and by it transferred to a state prison was a prisoner legally confined in a ‘state prison’ as that term is used in Penal Code section 4530. (See People v. Cox, 206 Cal.App.2d 446, 23 Cal.Rptr. 756.)

Smith, having been convicted of a felony and the trial court having pronounced judgment of commitment to the Youth Authority, is a person serving a sentence. ‘A ‘sentence’ is the judgment in a criminal action [Citations]; it is the declaration to the defendant of his disposition or punishment once his criminal guilt has been ascertained.' (People v. Rodriguez, supra, 222 Cal.App.2d at p. 226, 34 Cal.Rptr. at p. 911.) Smith is a ‘prisoner’ now ‘confined’ in a state prison, and under the language and import of Penal Code section 4501 as amended in 1963 would be lawfully confined and undergoing a sentence of less than life in a state prison. However, it cannot be said that as Penal Code section 4501 read prior to its amendment in 1963, which is the statute under which Smith stands convicted, he was at that time a person undergoing a sentence in a state prison. We cannot and should not hold that when the Legislature amended Penal Code section 4501 in 1963 it was in effect emphasizing its previous enactment and was in effect relating that when it used the language ‘every person undergoing a sentence of less than life in a state prison’ it intended to mean ‘every person confined in a state prison.’ (Emphasis added.)

Ordinarily, any essential change in phraseology of statute indicates an intention on the part of the Legislature to change its meaning rather than to interpret it. (Estate of Todd, 17 Cal.2d 270, 274–275, 109 P.2d 913.) The 1963 amendment does not indicate legislative intent merely to clarify its true meaning.

We hold that every person confined therein is not necessarily a person undergoing a sentence in a state prison, and that the commitment or transfer of Smith by the Youth Authority to a state prison did nothing more than place him there as a person committed by the Youth Authority and did not change his status as pronounced by the judgment of the trial court. Smith was not a person undergoing a sentence in a state prison.

It is argued that the section's objective before its amendment was the protection of prison guards from assault. If that had been the intention, why then were the guards at the correctional institutions not given that protection? They clearly were not. Thus if a youth assigned to, and accepted by, the Youth Authority were to have committed an assault upon a Youth Authority guard prior to the 1963 amendment, he could not have been tried under Penal Code section 4501. How then can we assume that the Legislature intended that the happenstance of his having been transferred to a state prison not through any adjudicated incorrigibility but merely as a matter of administrative experience should make a difference? Although In re Keller, supra, dealt with the habitual criminal statute and this case deals with aggravated assault, the net result to the defendant—the extension of the quantum of punishment—is the same. As we see it, if it is judicial legislation to increase a defendant's prison term in the one case, it may be said it is equally judicial legislation to do so in the other.

We need not decide the contention raised by petitioner concerning comment by the prosecutor on his failure to testify at the trial, since we conclude that the petition for a writ of habeas corpus must be granted.

It is ordered that petitioner be discharged from custody.

I dissent. In re Keller, 232 A.C.A. 637, 42 Cal.Rptr. 921, confronted this court with the problem of construing Penal Code section 644, the recidivism or habitual criminal statute. Section 644 enumerates certain felonies for which the person has ‘served separate terms * * * in any state prison,’ as prior convictions permitting an adjudication of habitual criminality. Aside from the enumeration of crimes, two elements determine a conviction's status as a prior offense within section 644: first, the character of the institution in which the offender was confined, and second, the nature of the proceedings leading to confinement. (In re Gilliam, 26 Cal.2d 860, 863, 161 P.2d 793; People v. Lockwood, 146 Cal.App.2d 189, 191, 303 P.2d 621.) In the Keller case we considered the second of these two elements, holding that the section 644 concept of a prison term demanded the prisoner's commitment pursuant to the adjudication of a court of law, precluding commitment by means of a transfer from the Youth Authority.

In the present case we confront a different problem and a different statute with a different objective. Penal Code section 4501, as it read prior to its 1963 amendment, provided an aggravated punishment for certain assaults by a person ‘undergoing a sentence of less than life in a State prison.’ The quoted phraseology applies literally to petitioner Smith. The trial court judgment committing him to the Youth Authority was a ‘sentence.’ (In re Herrera, 23 Cal.2d 206, 214, 143 P.2d 345.) He was ‘undergoing’ that sentence at the time of the assault. He was ‘in’ a state prison, both in the sense that he was physically there and in the sense that he was confined there by force of law. (See People v. Temple, 203 Cal.App.2d 654, 658, 21 Cal.Rptr. 633.)

In some cases the literal words of a law are intrinsically ‘clear,’ but become ambiguous in relation to the law's objective. (1 Witkin, Cal.Crimes pp. 15–16.) That is not true here. Section 4501 has the objective of promoting discipline in state prisons and protecting the safety of guards and inmates. (People v. Wells, 33 Cal.2d 330, 336, 202 P.2d 53.) This objective denotes its application to all inmates, excluding those serving life terms (the latter being covered by section 4500). In this case statutory language and objective do not collide, for San Quentin guards and inmates required just as much protection from assaults by petitioner Smith as from any other inmate. Neither language nor purpose calls for a technical distinction based upon the nature of the legal proceedings leading to confinement. Consequently there is no ambiguity here and no occasion to construe section 4501.

The status of Youth Authority wards confined in state prisons has occasioned judicial interpretation of language in Penal Code sections other than section 4501, e. g., In re Keller, supra; People v. Temple, supra. If these sections were related in purpose to section 4501, the relationship would evoke the rule calling for parallel construction of parallel provisions within a single code. Here, however, there is no teleological relationship. The purpose of section 4501, to discourage assaults by prison inmates, is quite different than that of section 644, the recidivism statute. There is no occasion for transporting into section 4501 an ambiguity emanating from the interpretive gloss of other statutes with dissimilar objectives.

If interpretation is needed, we need only pursue the mandate of Penal Code section 4: ‘All its provisions [i. e., of the Penal Code] are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.’ Construed with a view toward effecting the objective of section 4501, promotion of prison discipline and safety, the statute applied to petitioner and his offense.

The majority opinion mentions the wellknown rule construing uncertain penal statutes most favorably to the accused. (Walsh v. Dept. Alcoholic Beverage Control, 59 Cal.2d 757, 764, 31 Cal.Rptr. 297, 382 P.2d 337.) One writer has noted the inconsistency between this rule and Penal Code section 4. (1 Witkin, Cal.Crimes, p. 18.) On occasion the rule is also inconsistent with the cardinal judge-made principle which views legislative purpose as the prime consideration in construing criminal statutes. (Ibid., p. 13.) The purpose of section 4501 is not served by construing it in the light of In re Keller or other decisions interpreting different statutes with different objectives. Given a free choice between Penal Code section 4 and the rule favoring the accused, we should prefer to follow section 4. (See Redevelopment Agency v. Malaki, 216 Cal.App.2d 480, 487–488, 31 Cal.Rptr. 92.)

In 1963, after petitioner's offense, section 4501 was amended to cover assaults by persons ‘confined’ in a state prison. There is, of course, the question whether the Legislature meant to change or clarify the law. While an amendment ordinarily indicates a change in the law, under some circumstances it may be regarded as a legislative reaffirmance or clarification. (Ibid., pp. 22–23.) To ascribe to the Legislature an intent to change the statute requires the assumption that the Legislature had an intent when it adopted the statute in the first place, that is, that the Legislature foresaw the present contingency. (See Redevelopment Agency v. Malaki, supra, 216 Cal.App.2d at pp. 486–487, 31 Cal.Rptr. 92.) There is nothing to warrant such an assumption. Certainly the Legislature had the general objective of maintaining prison discipline and safety in the case of inmates who might commit assaults. That it intended to erect a distinction turning on the character of the legal proceedings resulting in the inmate's confinement is sheer speculation.

The 1963 amendment of section 4501 was accomplished by a bill which also amended section 4502, a companion provision prohibiting possession of weapons by prisoners. (See Stats.1963, ch. 2027.) Before the amendment section 4502 applied to prisoners ‘committed’ to a state prison. In 1949 section 4502 had already been judicially interpreted to embrace prisoners in a state prison pursuant to a Youth Authority ‘commitment.’ (People v. Scherbing, 93 Cal.App.2d 736, 209 P.2d 796.) Thus as regards Youth Authority wards in state prisons, the 1963 amendment of section 4502 did not alter its meaning. The amendment either clarified the statute to serve the purpose intended by the Legislature in the first place or restated the law to eliminate all possible doubt from all possible sources. There is no reason to ascribe to the Legislature a different intention in amending section 4501.

I would deny the writ.

REGAN, Justice.

PIERCE, P. J., concurs.

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IN RE: James Milton SMITH on Habeas Corpus. (1965)

Docket No: Cr. 3822.

Decided: October 21, 1965

Court: District Court of Appeal, Third District, California.

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