IN RE: DENNIS C. (1978)

OPINION

This appeal tests the constitutionality of that portion of Welfare and Institutions Code section 726^[FN1] which authorizes a juvenile court to commit a minor adjudged a ward of the court to a potential physical confinement in the Youth Authority for the longest of the three time periods specified for adults under paragraph 2 of subdivision (a) of Penal Code section 1170, without a finding of aggravating circumstances as required for adults under subdivision (b) of section 1170. As we shall explain, under the Supreme Court's decision in People v. Olivas (1976) 17 Cal.3d 236, 131 Cal.Rptr. 55, 551 P.2d 375, section 726 works a denial of the equal protection of the law as to any minor committed to the Youth Authority. Thus, we must remand the present case for a new dispositional hearing.

Appellant was found to be a person within Welfare and Institutions Code section 602 in that he committed forgery (Pen.Code, s 470, a felony), battery against a peace officer (Pen.Code, s 243, a felony), and resisting an officer in the discharge of his duty (Pen.Code, s 148, a misdemeanor). Acting under the authority of section 726, the juvenile court ordered that appellant be committed to the Youth Authority for one year for obstructing the officer, three years for the forgery, and three years for the battery against the officer, all commitments to be served consecutively. The juvenile court did not make a determination that there were circumstances in aggravation for any of the crimes for which appellant was committed.

Under the Determinate Sentence Law (DSL) an adult convicted of battery on a peace officer or forgery is subject to sentence of 16 months, 2 years, or 3 years for each offense (Pen.Code, ss 18, 243, 473). However, the court would be required to sentence the adult to the middle term of two years unless there was a showing of aggravating or mitigating circumstances (Pen.Code, s 1170, subd. (b)). On the other hand, under paragraph 3 of section 726, a juvenile who has committed a battery or forgery without any aggravating circumstances nonetheless must be committed to the authority for a potential period of confinement of three years a period greater than that imposed upon an adult who has committed the same offense.^[FN2]

In adult proceedings under DSL, the trial court imposes the actual sentence. In juvenile proceedings the court determines only the maximum period of time the minor can be placed under the control of the Youth Authority. The commitment to the authority is therefore indeterminate and the minor can be and usually is released much earlier than the end of the maximum term. However, under section 607 of the Welfare and Institutions Code,^[FN3] the authority may retain custody or control over a minor until he attains the age of 21, unless he is over the age of 16 years and found to have violated the more serious offenses listed in subdivision (b) of section 707 in which case he can be retained until he is 23 years of age. Thus, under sections 726 and 731 a minor may be confined potentially for a longer period than an adult.

In 1976 the Juvenile Court Law was amended to provide that no minor may be held in physical confinement in any juvenile hall, home, ranch, camp, forestry camp, or in any institution operated by the Youth Authority for a period in excess of the maximum term that could have been imposed on an adult convicted of the same offense. (ss 726, 731.) Section 726, however, did not define the “maximum term of imprisonment” which could be imposed on an adult. Subdivision (b) of rule 1373 of the California Rules of Court was enacted to provide that the maximum term should be determined by adult procedures. In 1977 the Legislature enacted an urgency statute “to clarify” the juvenile court law by amending sections 726, 731, and 1766. (Assem.Bill No. 1756 (1977-1978 Reg.Sess.) s 4.) The statute defined the “maximum term of imprisonment” as meaning “the longest of the three time periods” without the need to follow the specified procedures in connection with the imposition of maximum terms for adults. (Stats.1977, ch. 1238, No. 5 Deering's Adv.Legis.Service, p. 539.) Subdivision (b) of rule 1373 was subsequently amended to provide that when a minor is removed from the physical custody of his parent or guardian as a result of an order of wardship under section 602, the disposition order “shall specify the maximum period of confinement, determined in accordance with section 726.”

The above amendments must be examined in the light of the equal protection analysis of People v. Olivas, supra, 17 Cal.3d 236, 131 Cal.Rptr. 55, 551 P.2d 375. In that case the Supreme Court held that Welfare and Institutions Code section 1770^[FN4] was unconstitutional insofar as it authorized the Youth Authority to maintain control over misdemeanants committed to its care pursuant to section 1731.5 for any period of time in excess of the maximum jail term prescribed by statute for the offense committed. The court explained that section 1731.5 affected a specifically designated class of persons, those convicted of a public offense; it divides the class into two groups and creates a sentencing scheme whereby those misdemeanants between the ages of 16 and 21 years of age are singled out for Potentially longer terms of incarceration than all other misdemeanants. The court pointed out that the right to liberty also includes the right to be free from parole restrictions and is a fundamental interest protected under the equal protection clauses of the California Constitution and the United States Constitution. A classification affecting such a fundamental interest is subject to the strict standard of judicial review under which the state must prove a compelling interest justifying the law and demonstrate that “the distinctions drawn by the law are Necessary to further its purpose.” (Id., at p. 243, 131 Cal.Rptr., at p. 59, 551 P.2d at p. 379, emphasis original.) The Supreme Court concluded that neither the state's interest in rehabilitating youthful offenders nor any other conceivable interest could justify the disparate sentencing disapproving In re Herrera (1943) 23 Cal.2d 206, 143 P.2d 345 and People v. Scherbing (1949) 93 Cal.App.2d 736, 209 P.2d 796.

Olivas specifically reserved consideration of the issue whether the “term of involuntary confinement” of a juvenile adjudged under the juvenile law “may exceed that which might have been imposed on an adult or juvenile who committed the identical unlawful act and was thereafter convicted In the criminal courts” (People v. Olivas, supra, 17 Cal.3d 236, 243, fn. 11, 131 Cal.Rptr. 55, 59, 551 P.2d 375, 379, emphasis original). However, we believe that the court's holding as to the effect of a Youth Authority commitment on a ward's personal liberty interest including possible revocation of parole, can lead to but one conclusion that such disparate terms of confinement are constitutionally impermissible.

The dispositional decision of a juvenile court “implicates delicate rights of constitutional magnitude.” (Walker, Cal.Juvenile Court Practice (Cont.Ed.Bar Supp.1977) s 146C, p. 56.) In Breed v. Jones (1975) 421 U.S. 519, 529, 95 S.Ct. 1779, 1785, 44 L.Ed.2d 346, the United States Supreme Court analyzed the interest involved in a juvenile court commitment in California and stated:

“We believe it is simply too late in the day to conclude, . . . that a juvenile is not put in jeopardy at a proceeding whose object is to determine whether he has committed acts that violate a criminal law and whose potential consequences include both the stigma inherent in such a determination and the deprivation of liberty for many years. For it is clear under our cases that determining the relevance of constitutional policies, like determining the applicability of constitutional rights, in juvenile proceedings, requires that courts eschew ‘the ”civil“ label-of-convenience which has been attached to juvenile proceedings,’ (citation) and that ‘the juvenile process . . . be candidly appraised.’ (Fn. omitted. Citations.)

“. . . ven

“. . . ‘commitment is a deprivation of liberty. It is incarceration against one's will, whether it is called ”criminal“ or ”civil.“ ‘ ” (Id., at p. 530, 95 S.Ct. at p. 1786.)

“Nor does the fact ‘that the purpose of the commitment is rehabilitative and not punitive . . . change its nature. . . . Regardless of the purposes for which the incarceration is imposed, the fact remains that it is incarceration. The rehabilitative goals of the system are admirable, but they do not change the drastic nature of the action taken. Incarceration of adults is also intended to produce rehabilitation.’ (Citations.)” (Id., fn. 12.)

The key factor common to all Youth Authority commitments is the physical restraint of the ward's person. (People v. Olivas, supra, 17 Cal.3d 236, 244, 131 Cal.Rptr. 55, 551 P.2d 375.) Moreover, a ward released on parole is still subject to a number of significant restraints on his liberty:

“In addition to any special conditions which may be imposed, Youth Authority conditions of parole typically embrace the duty to follow all instructions of a parole agent including mandatory involvement in a selected employment, education or training program, submission to medical or psychiatric examinations or treatment as directed by the Youth Authority and the necessity of obtaining permission in order to change residences. (Citation.) Moreover, the parolee must acknowledge that he is still under the control of the authority And that violations of parole conditions may result in temporary detention for up to 30 days or return to an authority institution for the remainder of the commitment period. (Citation.)” (Id., at p. 245, 131 Cal.Rptr. at p. 60, 551 P.2d at p. 380, emphasis added.)

Thus, the ward's fundamental liberty interest “must be defined to include not only his interest in being free from incarceration in an institution of the Youth Authority, But also to encompass his interest in freedom from the restraints that accompany parole or any other control by the authority.” (Id., emphasis added.)

The maximum period of physical confinement of juveniles authorized by section 726 cannot survive the strict scrutiny test. The traditional view that treatment and rehabilitation of youthful offenders justifies confinement of juveniles for a term longer than an adult committing the same offense was rejected in Olivas. After quoting from its earlier decision in In re Herrera, supra, 23 Cal.2d 206, 143 P.2d 345, which expounded on the great value of long term treatment of youthful offenders to prevent recidivism, the court stated:

“There remains as much wisdom in that observation today as it held over 30 years ago. However, we are no longer able to find such a generalization, standing alone, as sufficient justification for governmentally imposed inequality where deprivations of personal liberty are involved. It is not without significance that Herrera was decided long before fundamental interest analysis and the strict scrutiny standard became fully delineated tools for use in constitutional evaluation. The analysis undertaken in Herrera was much different from that we engage in today for in 1943 it was sufficient to state, ‘It is a matter of practical necessity, . . . and one of legislative discretion, to fix theoretical lines where there are no real ones, and there is no abuse of such discretion when the theoretical lines are not unreasonable.’ (In re Herrera, supra, 23 Cal.2d 206, at p. 213, 143 P.2d 345, at p. 348.) While the malleability of youth noted in Herrera may have remained fairly constant through the intervening years, constitutional analysis has undergone considerable metamorphosis. Where once merely reasonable classifications were sufficient, the state must now show a compelling interest if fundamental rights are affected as in the present case. It was for precisely that reason that we have chosen to reconsider the conclusion reached in Herrera, notwithstanding the assertion of the People that defendant's position is ‘clearly without merit.’ ” (Olivas, supra, at pp. 251-252, 131 Cal.Rptr. at p. 65, 551 P.2d at p. 385.)

Olivas also noted that the American Law Institute (ALI), which composed the Model Youth Correction Authority Act in the 1950's has reversed its position on the issue of longer confinement for youthful offenders. It said:

“During the formulation of the Model Penal Code, the A.L.I. indicated that ‘(it) departs from the Model (Youth Correction Authority) Act and the California legislation which permitted the Authority to control misdemeanants for a longer period than the ordinary maximum for their offenses (while Minnesota limits control to the maximum otherwise provided by law).’ (Citation.) The reason for this change of attitude is particularly relevant to our own determination. ‘We recognize the theory of provisions of this kind (permitting longer confinement of youthful offenders), that such a longer term is more reformative than a short, definite sentence to jail. This is a case, however, where we think that theory has outrun a sense of just proportion. Simple regard for personal liberty of young no less than of mature adults requires, in our view that younger people not be subject to more onerous sentences because of their immaturity. We can perceive no adequate basis for sentencing young adults, whose offenses reveal no substantial danger to the community, to sentences as long as those imposed for major crimes.’ (Citations.)” (People v. Olivas, supra, 17 Cal.3d 236, 254, 131 Cal.Rptr. 55, 67, 551 P.2d 375, 387.)

Olivas concluded that although the state has an interest in the rehabilitation of youthful offenders, a sentencing scheme whereby a juvenile can be confined for a potential period longer than an adult committing the same offense is unnecessary to achieve the goal of meaningful rehabilitation. Although Olivas involved a misdemeanant, the People have offered no explanation as to why the same conclusion is not as sound with respect to youthful Felony offenders. In short, the People have failed to show that longer periods of confinement for juvenile felony offenders than adult offenders are Necessary for rehabilitative purposes.

DISPOSITION

Appellant is entitled to a remand of his case for another dispositional hearing, at which time the court should set the middle term as the maximum period of potential confinement unless it finds evidence of aggravation or mitigation. The court should also set the maximum aggregate period of confinement for all these offenses in accordance with Penal Code section 1170.1. (Ante, fn. 2, p. 357.)

The judgment 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 reads 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 enhancement which must be proven if pled.”

2.  Under Penal Code section 1170.1, subdivision (a), made applicable to juvenile commitments by section 726, where the court finds aggravating circumstances the maximum consecutive term to which an adult can be sentenced is three years for the principal term (either the forgery or the battery) plus one-third of the middle term of the subordinate felony (i. e., eight months). The misdemeanor normally would be ordered to be served concurrently with the felony sentences although the law is by no means certain on this point. Thus, an adult convicted of the same crimes as appellant with a finding of aggravating circumstances would be sentenced to a total base term of three years and eight months under section 726 as it now reads. However, where no aggravation is found, under Penal Code section 1170, subdivision (b), the adult court would be required to select a middle term for the principal felony, two years, plus one-third of the middle term for the subordinate felony, eight months, for a total base term of two years and eight months. Thus, under section 726 as it now reads, appellant is subject to potential Youth Authority confinement for one year longer than an adult would be confined for the identical offenses.

3.  Section 607 provides:“(a) The court may retain jurisdiction over any person who is found to be a ward or dependent child of the juvenile court until such ward or dependent child attains the age of 21 years, except as provided in subdivision (b).“(b) The court may retain jurisdiction over any person who is found to be a person described in Section 602 of this code by reason of the violation, when he was 16 years of age or older, of any of the offenses listed in subdivision (b) of Section 707 until such person attains the age of 23 years if the person was committed to the Youth Authority.”

4.  Section 1770 provides:“Every person convicted of a misdemeanor and committed to the authority shall be discharged upon the expiration of a two-year period of control or when the person reaches his 23d birthday, whichever occurs later, unless an order for further detention has been made by the committing court pursuant to Article 6 (commencing with Section 1800).”

FRANSON, Associate Justice.

GEO. A. BROWN, P. J., and ANDREEN,[FN*] J., concur.