IN RE: ERIC J. (1978)

Eric Craig J., a minor, was declared a ward of the juvenile court following a finding he fell within Welfare and Institutions Code section 602. After a true finding was made at the jurisdictional hearing that Eric had committed a burglary (Pen.Code, s 459), he was committed to the California Youth Authority (CYA) for the maximum term of confinement permitted by law. He appeals from the dispositional order (Welf. & Inst. Code, s 800).

For the reasons which we will discuss, we have concluded that (1) his commitment for the upper term without the need of a finding of aggravation nor the possibility of presenting circumstances in mitigation as accorded adults convicted of identical offenses (Pen.Code, s 1170(b)) denied him equal protection of the laws; (2) the determination of his maximum term was erroneous; and (3) the court failed to credit him for pre-sentence time. We reverse the order.

STATEMENT OF FACTS

About a month after nine pairs of roller skates were stolen from the Sweetwater Roller Rink in National City, Midge Rhoda, a professional skating teacher, contacted the owner. She explained that Eric was at the Palisades Gardens Skating Rink attempting to sell roller skates and they might be those which were taken. The police were informed. Police Officer Davis, in response to the call, went to the Sweetwater Rink.

Officer Davis was advised by the manager of the identity of the juvenile and his employment at the Sweetwater Rink. The officer had a copy of the police report involving the burglary. The uniformed officer then drove the manager to the Palisades Gardens, where they contacted Rhoda and arranged to meet Eric in Rhoda's office. During questioning by the manager for approximately 45 minutes to an hour, Eric confessed to the burglary, implicated his brother as his accomplice, indicated he had sold some of the skates to individuals still at the rink, and noted the remainder of the skates were at his home. On two separate occasions during the discussion, Eric left the office and returned with the individuals to whom he had sold the skates.

Officer Davis drove the manager and Eric to the latter's home and recovered the rest of the skates. During the retrieval, the officer remained in the marked police car while the other two parties went into the house. Eric was not advised of his constitutional rights as outlined in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, until after he was taken to the police station.

THE CONSTITUTIONALITY OF THE COMMITMENT OF A JUVENILE FOR THE UPPER TERM WITHOUT THE NEED OF A FINDING OF AGGRAVATION NOR THE POSSIBILITY OF PRESENTING MITIGATING CIRCUMSTANCES AS ACCORDED ADULTS CONVICTED OF IDENTICAL OFFENSES

Welfare and Institutions Code sections 726 and 731^[FN1] provide that a juvenile properly committed to the CYA may not be confined by the Youth Authority longer than an adult could be imprisoned for the commission of the same offense. The maximum term of possible confinement for a juvenile is defined in section 726 as being the longest of the three possible terms imposable for the offense under the Determinate Sentencing Law without the opportunity of showing aggravation or mitigation. Defendant contends this statutory scheme providing for the commitment of the upper term without a finding of aggravation, as well as depriving a juvenile of the opportunity of presenting circumstances in mitigation, as accorded adults convicted of identical offenses, denies him equal protection of the laws as guaranteed by the United States Constitution, Amendment XIV and the California Constitution, Article 1, section 7(a).

We do not face this issue as an original problem unfettered by judicial or legislative comment. The juvenile law has undergone dramatic changes in recent years. It is no longer a simple and informal system. It has become an interesting mix of formal due process requirements along with the informal procedures developed in the effort to achieve rehabilitation for those involved by dealing promptly and directly with youths during their formative years. The series of trade-offs impacting the traditional procedure in juvenile law has been the result of balancing the constitutional safeguards to which children are entitled against the potential benefits derived from the traditional approach. With only the exception of McKeiver v. Pennsylvania (1971) 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647, in which it was held the Fourteenth Amendment did not mandate the right to trial by jury in an adjudicative phrase of a state juvenile court proceeding, the United States Supreme Court has responded consistently by requiring the application of constitutional safeguards in juvenile proceedings. (See In re Gault (1976) 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527; In re Winship (1970) 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368; Breed v. Jones (1975) 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346.) Our approach, however, cannot be a doctrinaire assumption that it is essential to engraft each aspect of the adult penal system on the juvenile law. There are circumstances which legitimately warrant the rejection of judicial surgery. (See, e. g., Alex T. v. Superior Court (1977) 72 Cal.App.3d 24, 140 Cal.Rptr. 17.)

Our analysis of the issue presented in this appeal is also guided by the decision of our Supreme Court in People v. Olivas (1976) 17 Cal.3d 236, 131 Cal.Rptr. 55, 551 P.2d 375.^[FN2] Olivas, an adult, was tried and convicted in an adult court of misdemeanor assault pursuant to Welfare and Institutions Code section 1731.5. He was ordered committed to the Youth Authority. Had Olivas been sentenced for his crime under the Penal Code, his maximum term of confinement would have been six months in the county jail (Pen.Code, s 241) whereas his Youth Authority commitment carried a possible confinement period extending until his 23rd birthday, or in excess of three years. (Welf. & Inst.Code, s 726.) The court held Olivas was similarly situated with any other adult who had been convicted of the same crime but sentenced to jail or state prison. (Id. at p. 242, 131 Cal.Rptr. 55, 551 P.2d 375.) It concluded his interest was one of “personal liberty,” a Fundamental interest. The state was required to show not only there was a compelling interest which justified the law, but also the distinctions drawn by the law were necessary to further its purpose. (Id. at p. 243 and p. 251, 131 Cal.Rptr. 55, 551 P.2d 375.) The court concluded the disparity of confinement periods violated Olivas' constitutional right to equal protection, since the state could not show the disparity was necessary to further a compelling state interest. It held section 1770 of the Welfare and Institutions Code unconstitutional insofar as it authorized the Youth Authority to maintain control over misdemeanants committed to its care for any period of time in excess of the maximum jail term permitted by the statute for the offense or offenses committed. (People v. Olivas, supra, 17 Cal.3d 236, at p. 257, 131 Cal.Rptr. 55, 551 P.2d 375.) Olivas specifically reserved the issue presented in the case at bench, i. e., whether equal protection requires the same procedure used in the criminal courts for adults at the time of sentencing In a situation in which a juvenile is adjudged under the Juvenile Court Law as a juvenile. (See Olivas, supra, at p. 243, fn. 11, 131 Cal.Rptr. 55, 551 P.2d 375.)

The declared purpose behind adult incarceration is punishment. (Pen.Code, s 1170(a)(1).) The declared purposes behind juvenile commitment are treatment and rehabilitation (In re Aline D. (1975) 14 Cal.3d 557, 567, 121 Cal.Rptr. 816, 536 P.2d 65) which are implemented by “methods of training and treatment directed toward the correction and rehabilitation of young persons found guilty of public offenses. . . .” (Welf. & Inst.Code, s 1700.) An additional element was added to the purpose of the juvenile law in the amendment to Welfare & Institutions Code section 202 (Stats.1976, ch. 1068, s 1.5; Stats.1977, ch. 910, s 1) to admit the purpose was also “to protect the public from criminal conduct by minors.” Placement in the CYA is a last resort after all other efforts permitted by the applicable provisions of the Welfare and Institutions Code have failed. (In re Aline D., supra, 14 Cal.3d 557, 564, 121 Cal.Rptr. 816, 536 P.2d 65.) “Within the Youth Authority system, there is gathered from throughout the State the most severely delinquent youths which have exhausted local programs.” (Id. at p. 564, 121 Cal.Rptr. at p. 821, 536 P.2d at p. 69, quoting from California Youth Authority, Criteria and Procedure for Referral of Juvenile Court Cases to the Youth Authority (1971) p. 1.)

“Commitment in an institution of the Youth Authority can be described in many ways and can encompass a wide range of controls. However, the key factor common to all such descriptions is the physical restraint of the ward's person. While wards confined in institutions of the Youth Authority may often experience greater freedom within the institution than individuals confined in state prisons or mental hospitals (citation), they are nevertheless incarcerated against their will, a most basic form of personal liberty deprivation.” (People v. Olivas, supra, 17 Cal.3d 236, 244-245, 131 Cal.Rptr. 55, 60, 551 P.2d 375, 380.)

The Youth Authority itself, more recently, has recognized the subtlety in the semantics of “rehabilitation” and “punishment.” It intends to explore the “growing realization that incarceration in a Youth Authority institution, or any penal facility for that matter, represents punishment.” (1977 Annual Report, Department of Youth Authority, p. 4.) Labels should be particularly distressing to those directly involved with offenders in the operation of the Youth Authority for of the 3,626 youths first committed to Youth Authority custody in 1977, 2,013 were placed by the juvenile courts; 1,544 by the superior courts; and 69 by lower courts. (1977 Annual Report, Supra, p. 17.) No distinction among the offenders is made in terms of their personal liberty and the source of their commitment. Once within the jurisdiction of the Youth Authority, limitations on behavior do not turn on whether one was initially processed within the juvenile law and for “rehabilitative” purposes committed to the Youth Authority or whether one started out as an adult through the criminal courts. The adult defendant, eligible for and committed to the Youth Authority by the criminal court, and his younger partner committed through the juvenile court, are both deprived of a procedure at the time of sentencing which has the possible effect of their incarceration for a longer period under the guise of rehabilitation than the imprisonment of their other adult partner sentenced to state prison for punishment for the same offense.

We do not know the practical effect of this disparate treatment on the attitude of youthful offenders. In any event, it is essential to avoid even the appearance of unfairness to maintain an atmosphere consistent with the goals of the juvenile law. (See In re Gault, supra, 387 U.S. 1, 26, 87 S.Ct. 1428, 1443, 18 L.Ed.2d 527, 545.)

We do not pursue our analysis on a general inquiry as to whether All juveniles are similarly situated with All adults. It is limited to whether those persons who are processed in the juvenile court and ultimately committed to the Youth Authority are entitled to the same procedure as adults who are sentenced to prison for the same offense by the adult court.

Only persons similarly situated with respect to the legitimate purpose of the law are entitled to like treatment. (See Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 578, 79 Cal.Rptr. 77, 456 P.2d 645; In re Antazo (1970) 3 Cal.3d 100, 110, 89 Cal.Rptr. 255, 473 P.2d 999.) We are not able to discern any distinguishable feature other than age between adult persons who have committed a public offense and are imprisoned, and juveniles who commit the same offense and lose their liberty by commitment to the Youth Authority.

“ ‘Personal liberty is a fundamental interest, second only to life itself, as an interest protected under both the California and United States Constitutions.’ (Citation.) It is beyond dispute that a principal ingredient of personal liberty is ‘freedom from bodily restraint’ (citation) and that minors as well as adults are ‘persons' under the Constitution who are entitled to the protection of that right. (Citation.). . . . ‘Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights.’ ” (In re Roger S. (1977) 19 Cal.3d 921, 927-928, 141 Cal.Rptr. 298, 301-302, 569 P.2d 1286, 1289-1290.)

Inferentially, our Supreme Court established the premise that parties incarcerated as public offenders are similarly situated. (See People v. Olivas, supra, 17 Cal.3d 244-245, 131 Cal.Rptr. 55, 551 P.2d 375.) This is also the assumption in In re Aaron N. (1977) 70 Cal.App.3d 931, 939-940, 139 Cal.Rptr. 258. We conclude a juvenile processed as a juvenile in the juvenile court committed to CYA is similarly situated to an adult in the criminal court sentenced to state prison.^[FN3]

The Attorney General relies upon the different purposes behind criminal prosecution and juvenile proceedings as the basis for the conclusion adult and juvenile offenders processed entirely within the different systems are not similarly situated. Although misdirected on that issue, the inquiry is relevant in determining whether there exists a compelling state interest or whether the compelling state interest is furthered by the difference in legislative treatment. Because the Olivas court found that personal liberty constituted a “fundamental interest, second only to life itself, as an interest protected under both the California and United States Constitutions” (People v. Olivas, supra, 17 Cal.3d 236, at p. 251, 131 Cal.Rptr. 55, at p. 64, 551 P.2d 375, at p. 384), it applied the “strict scrutiny” standard of review, which requires the state to “establish that it has a Compelling interest which justifies the law and then demonstrate that the distinctions drawn by the law are Necessary to further that purpose.” (Ibid.) We will assume that rehabilitation is a compelling state interest and direct our discussion to whether that interest is furthered by the difference in legislative treatment of juveniles.

The Supreme Court in Olivas rejected contentions that the difference in the potential duration of incarceration between youthful and adult offenders was justified by the former's relative malleability and the need for a longer period of confinement in order to achieve rehabilitation. The Olivas court, after a full examination into the basis for longer detention of youthful offenders, discarded the Quid pro quo of rehabilitation for longer confinement under different terms and conditions than confinement in an ordinary prison. In examining the Quid pro quo rationale with fundamental interest analysis, the Supreme Court found it constitutionally inadequate. Freedom from incarceration cannot be compared to fungible commodity which can be casually traded. (See People v. Olivas, supra, at p. 253, 131 Cal.Rptr. 55, 551 P.2d 375.)

“Irrespective of whatever amenities are provided to the ward confined in an institution of the Youth Authority in order to differentiate the quality of his incarceration from those persons confined in a county jail or state prison, the plain and simple fact remains that he cannot leave of his own free will. His daily routine is regimented, his personal habits and intimate private matters are subject to the scrutiny of others; in short, his life is completely controlled in a most basic sense.” (Id. at pp. 253-254, 131 Cal.Rptr. at p. 66, 551 P.2d at p. 386.)

No empirical data has been presented and no argument has been stated which satisfies the standard of scrutiny required in this case. The Attorney General argues the differential in the period of confinement imposed on youthful offenders is not so disproportionate to the term imposed on adult offenders to involve the application of Olivas. When this argument is examined in light of the fundamental interest involved, we conclude the difference in time, modest as it may appear to those whose liberty is not restricted, cannot be constitutionally condoned.

There are those who will undoubtedly say the juvenile has the best of both worlds. He obtains the benefits of the Indeterminate Sentencing Law within the juvenile system with the opportunity of being released earlier than the outer limits of his commitment and the benefits of the limitation of a maximum term determined in accordance with the adult penal system. We do not view this as a dramatic result. It is only consistent with the purpose of the juvenile justice system which will still permit the juvenile to be released at any time before the service of the maximum term if deemed rehabilitated or retained for the maximum term if efforts at rehabilitation are unsuccessful. (Welf. & Inst. Code, s 1176.) As a practical matter, we suspect our decision will have little or no impact on the operation of the Youth Authority. There should be a direct correlation between the length of term imposed and successful rehabilitation of youthful offenders, i. e., those who are more likely to be rehabilitated will be given lesser terms; those less likely, longer terms. We anticipate the same class of offenders upon whom are imposed the upper term because of circumstances in aggravation will be identical to the class that would have otherwise remained incarcerated for the upper term.

We recognize our decision creates an additional facet to the dispositional hearing (Welf. & Inst. Code, s 706) causing additional work for the presently overburdened personnel within the juvenile court system. We cannot allow this administrative consideration, important as it is, to outweigh the guarantees afforded to minors.

Because of equal protection of the laws (U.S.Const., 14th Amend.; Cal.Const., art. 1, s 7, subd. (a)), we conclude the provision within Welfare and Institutions Code section 726 relating to the automatic imposition of the upper term of confinement is unconstitutional. Juvenile courts shall be required to apply the substantive rule of Penal Code section 1170(b) providing for the sentencing of the middle term unless aggravating or mitigating circumstances have been established in determining a minor's potential term of incarceration.

THE COMPUTATION OF THE MAXIMUM TERM OF CONFINEMENT FOR CONSECUTIVE SENTENCES

Although we have concluded that Eric's maximum term of confinement for the burglary must be designated at the middle term (two years) unless circumstances in mitigation or aggravation are shown, Eric presents us with another novel contention urging the juvenile court erred in aggregating his sentences by setting the maximum term of commitment at three years and six months. This figure was reached by adding the term of six months for misdemeanor contempt (Pen.Code, s 166(4)) to the upper term of three years for the burglary. He contends that Welfare and Institutions Code section 726^[FN4] read in conjunction with Penal Code section 1170.1, subdivision (a)^[FN5] provides for the aggregation of multiple petitions by calculating the sum of the maximum term of the subordinate offense if it is a misdemeanor. We agree.

The Attorney General argues no error occurred when the court chose to aggregate the two maximum terms in the manner it did, since section 1170.1, subdivision (a) applies only to those individuals convicted of and sentenced on two or more felonies. This argument is unpersuasive. If we accepted the Attorney General's statutory construction, then theoretically the following unjust, equal protection problem would arise: An individual who is sentenced to a maximum term for committing a principal felony offense and who is also sentenced consecutively for one-third of the middle term of a “16 months, two years, three years” subordinate felony offense would receive a four-month shorter sentence than would an individual convicted and sentenced identically on the principal offense but who was sentenced one year on a misdemeanor subordinate offense. Clearly, such a result is improper, as “(t)he courts have long recognized the principle that if ‘the terms of a statute are by fair and reasonable interpretation capable of a meaning consistent with the requirements of the Constitution, the statute will be given that meaning, rather than another in conflict with the Constitution.’ ” (San Francisco Unified School Dist. v. Johnson (1971) 3 Cal.3d 937, 948, 92 Cal.Rptr. 309, 315, 479 P.2d 669, 675.)

We are also mindful that “where the language of a statutory provision is susceptible of two constructions, one of which, in application, will render it reasonable, fair and harmonious with its manifest purpose, and another which would be productive of absurd consequences, the former construction will be adopted (Citations).” (Clements v. T. R. Bechtel Co. (1954) 43 Cal.2d 227, 233, 273 P.2d 5, 9.) Hence, we conclude the Legislature, through its incorporation of Penal Code section 1170.1(a) in Welfare and Institutions Code section 726, intended that only the Procedure embodied within section 1170.1(a) be used to determine the maximum term of imprisonment when sentencing a juvenile to consecutive terms, regardless of the nature of the subordinate crime. To do so is consistent with the punitive legislative purpose of imprisonment, which is described in section 1170(a)(1) as being “best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances.” The Legislature thus declared that the elimination of disparity and the uniformity of sentences can best be accomplished through determinate sentencing in the above manner. Since misdemeanors are viewed by the Legislature as less serious, shorter terms for incarceration have been enacted. Accordingly, only one-third of the six months prescribed by law for the contempt violation should have been added to the sentence for the principal offense.

THE CREDIT FOR PRESENTENCE TIME

Eric also asserts the court erred in failing to give him credit against his CYA commitment for time spent in custody pending juvenile court proceedings, pursuant to Penal Code section 2900.5. We agree.

Relying upon In re Leonard R. (1977) 76 Cal.App.3d 100, 102-104, 142 Cal.Rptr. 632, the Attorney General argues section 2900.5, which provides for credit for time in custody before commencement of sentence, is by its terms expressly not applicable to juvenile commitments, because a declaration of wardship does not constitute a conviction and a dispositional order is not equivalent to a sentence. (In re Leonard R., supra, 76 Cal.App.3d 100, at p. 104, 142 Cal.Rptr. 632.) As evident from our foregoing analysis of the holding of People v. Olivas and its constitutionally mandated application to the juvenile justice system, we have considered the reasoning of In re Leonard R. but have, however, reached a contrary conclusion. (See gen., People v. Sandoval (1977) 70 Cal.App.3d 73, 87-92, 138 Cal.Rptr. 609.) Consequently, upon remand, Eric shall be entitled to credit for the time he spent in custody pending juvenile court proceedings on both the contempt charge (19 days) and the burglary charge (27 days).

THE MIRANDA CONTENTION

Eric finally contends his inculpatory statements made in the presence of Officer Davis without advisement of his Miranda rights were obtained in violation of his right against self-incrimination and thus mandates their exclusion along with the evidence which was obtained as the direct result of them. Eric urges that although the manager was the only person asking the questions, the circumstances surrounding the questioning required Officer Davis to admonish him of his Miranda rights. The court expressly found the officer did not participate in the questioning and impliedly found the lack of agency between the officer and manager in ruling a Miranda warning was unnecessary.

Preliminarily, we note:

“(T)he trial court's ruling on a Miranda issue may not be set aside by us unless it is ‘Palpably erroneous.’ A ruling palpably erroneous is one lacking support of substantial evidence. (Citation.) And of course ‘(w)hen two or more inferences can reasonably be deduced from the facts,’ either deduction will be supported by substantial evidence, and ‘a reviewing court is without power to substitute its deductions for those of the trial court.’ (Citations.)” (People v. Superior Court (Tunch) (1978) 80 Cal.App.3d 665, 670, 145 Cal.Rptr. 795, 797.)

The procedural safeguards set forth in Miranda v. Arizona, supra, 385 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 “come into play only where ‘custodial interrogation’ is involved . . . initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (People v. Fioritto (1968) 68 Cal.2d 714, 718, 68 Cal.Rptr. 817, 819, 441 P.2d 625, 627.) Hence, in regard to questioning of a defendant by a private citizen, the latter is not required to advise the former of his Miranda rights before questioning, unless there is evidence of complicity on the part of law enforcement. (People v. Mangiefico (1972) 25 Cal.App.3d 1041, 1049, 102 Cal.Rptr. 449.)

Although a contrary ruling might have resulted had the court relied upon the minor's credibility and testimony the officer had participated in the questioning, we find the record amply supports the court's ruling he had not. Further, the record is devoid of concrete evidence supporting the theory of complicity on the part of law enforcement. We concur with the court's implied negative finding of the absence of complicity.^[FN6]

Eric relies on Stapleton v. Superior Court (1968) 70 Cal.2d 97, 102-103, 73 Cal.Rptr. 575, 447 P.2d 967, where the Supreme Court held a private citizen may be deemed to act as an agent of the police when the latter merely “stands silently by” and knowingly permit the citizen to conduct an illegal search for their benefit while making no attempt to protect the rights of the party being searched. As we have previously discussed, there is support in the record for the trial court's conclusion the civilian was not acting as the agent of law enforcement. The questioning by the manager was motivated by his legitimate desire to find out what had happened to his property. Although the answers given by Eric were ultimately of benefit to the police, there is an absence of police involvement which warrants the application of Miranda. We do not have the police orchestrating a scenario to obtain the benefits of an interrogation which, when independently conducted by a layman, is clearly not unlawful conduct. (Cf. Stapleton v. Superior Court, supra, 70 Cal.2d 97, 102-103, 73 Cal.Rptr. 575, 447 P.2d 967; People v. McKinnon (1972) 7 Cal.3d 899, 913, 103 Cal.Rptr. 897, 500 P.2d 1097.)

DISPOSITION

The order of commitment to the Youth Authority is reversed; the matter is remanded with directions to the juvenile court to hold another dispositional hearing in accordance with the views expressed herein.

FOOTNOTES

1.  Section 726 provides in pertinent part:“In any case in which the minor is removed from the physical custody of his parent or guardian as the result of an order . . . Of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense Or offenses which brought Or continued the minor under the jurisdiction of the juvenile court.“As used in this section and in Section 731, ‘maximum term of imprisonment’ means the longest of the three time periods set forth in paragraph (2) of subdivision (a) of Section 1170 of the Penal Code, but without the need to follow the provisions of subdivision (b) of Section 1170 of the Penal Code or to consider time for good behavior or participation pursuant to Sections 2930, 2931, and 2932 of the Penal Code, plus enhancements which must be proven if pled.”“ ‘Physical confinement’ . . . means placement . . . in any institution operated by the Youth Authority.” (Amended by Stats.1976, ch. 1068, s 53; Stats.1976, ch. 1071, s 29; Stats.1977, ch. 1238, s 1, urgency, eff. Oct. 1, 1977.)Section 731 provides in part:“A minor committed to the Youth Authority may not be held in physical confinement for a 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 brought Or continued the minor under The jurisdiction of the juvenile court. Nothing in this section limits the power of the Youth Authority to retain the minor on parole status for the period permitted by Section 1769.” (Amended by Stats.1976, ch. 440, s 3; Stats.1976, ch. 1068, s 60; Stats.1976, ch. 1071, s 30; Stats.1977, ch. 1238, s 2, urgency, eff. Oct. 1, 1977.)

2.  The Olivas case elicited considerable comment. (See Note, Extended Incarceration of Youth Offenders (1977) 65 Cal.L.Rev. 345; Note, People v. Olivas: Equalizing the Sentencing of Youthful Offenders with Adult Maximums (1977) 4 Pepperdine L.Rev. 389; Discussion, People v. Olivas: The Concept of “Personal Liberty” as a Fundamental Interest in Equal Protection Analysis (1977) 4 Hastings Const.L.Q. 757.)

3.  In re Roger S., supra, 19 Cal.3d 921, 141 Cal.Rptr. 298, 569 P.2d 1286, is distinguishable because of the direct involvement of the parent's compelling interest in the upbringing of his or her child and the necessary impingement on the child's personal liberty interest. The argument that the state steps into the shoes of the parents under the rationale of In loco parentis is truly a fiction which we are not desirous of perpetuating in this decision. (See In re Gault, supra, 387 U.S. 1 at p. 17, 87 S.Ct. 1428 at p. 1438, 18 L.Ed.2d 527 at p. 540.

4.  Section 726 provides in pertinent part:“In any case in which the minor is removed from the physical custody of his parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.“As used in this section and in Section 731, ‘maximum term of imprisonment’ means the longest of the three time periods set forth in paragraph (2) of subdivision (a) of Section 1170 of the Penal Code, but without the need to follow the provisions of subdivision (b) of Section 1170 of the Penal Code or to consider time for good behavior or participation pursuant to Sections 2930, 2931, and 2932 of the Penal Code, plus enhancements which must be proven if pled.“If the court elects to aggregate the period of physical confinement on multiple counts, or multiple petitions, including previously sustained petitions adjudging the minor a ward within Section 602, the ‘maximum term of imprisonment’ shall be specified in accordance with subdivision (a) of Section 1170.1 of the Penal Code.“If the charged offense is a misdemeanor or a felony not included within the scope of Section 1170 of the Penal Code, the ‘maximum term of imprisonment’ is the longest term of imprisonment prescribed by law.“ ‘Physical confinement’ means placement in a juvenile hall, ranch, camp, forestry camp or secure juvenile home pursuant to Section 730, or in any institution operated by the Youth Authority.” (Emphasis added.)

5.  Penal Code section 1170.1, subdivision (a) reads:“Except as provided in subdivision (b) and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all such convictions shall be the sum of the principal term, the subordinate term and any additional term imposed pursuant to Section 667.5. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any enhancements imposed pursuant to Sections 12022, 12022.5, 12022.6 or 12022.7. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall exclude any enhancements when the consecutive offense is not listed in subdivision (c) of Section 667.5, but shall include one-third of any enhancement imposed pursuant to Section 12022, 12022.5 or 12022.7 when the consecutive offense is listed in subdivision (c) of Section 667.5. In no case shall the total of subordinate terms for consecutive offenses not listed in subdivision (c) of Section 667.5 exceed five years.”

6.  Our research into foreign state law has reinforced our conclusion that the presence of a police officer at the scene of an interrogation by a layman of a suspect does not require the giving of the Miranda warnings, absent a showing of agency or complicity. (Commonwealth v. Mahnke (1975) 368 Mass. 662, 335 N.E.2d 660, 669-670; State v. Peabody (1974) Me., 320 A.2d 242, 245; State v. Guerrero (1973) 29 Utah 2d 243, 245, 507 P.2d 1029, 1030; Commonwealth v. Bordner (1968) 432 Pa. 405, 247 A.2d 612, 615-616; Truex v. State (1968) 282 Ala. 191, 210 So.2d 424, 425.)

WIENER, Associate Justice.

GERALD BROWN, P. J., and STANIFORTH, J., concur.