IN RE: RICKY H. (1980)

OPINION

This is an appeal from a commitment to the California Youth Authority (hereafter CYA) by the juvenile court of the Tulare County Superior Court.

Appellant contends the court abused its discretion in committing appellant to CYA and erred in failing to give credit for predisposition confinement as well as good-time/work-time credit.

The proceedings leading to disposition commenced with the filing of an 11-count petition on November 6, 1978. Appellant was charged with nine counts of burglary and two counts of petty theft occurring between July 21, 1978, and October 27, 1978. At his detention hearing the minor admitted four counts of burglary and the other counts were dismissed in the interest of justice, but with the stipulation that restitution could be ordered. The matter was set for disposition and appellant was held in detention.

On November 12th, appellant struck a juvenile hall employee in the back of the head with a paddle, threw a table through a door, exited the building and completed his escape by climbing over a high barbed wire fence.

On November 13th, another petition was filed charging appellant in count one with assault by means of force likely to produce great bodily injury and in count two with escape.

On November 14th, an additional petition was filed charging appellant in count one with vehicle theft and in count two with trespass. Prior to jurisdictional hearing the appellant admitted both counts of the November 13 petition and the November 14 petition was dismissed in the interest of justice.

At dispositional hearing held December 12, 1978, appellant's counsel argued in favor of a commitment to the Robert K. Meyers Youth Center, however, appellant was adjudged a ward of the court and committed to CYA on the assault by means of force with concurrent terms on the burglary and escape counts. No credit was granted for predisposition time spent in custody at juvenile hall or for good-time/work-time.

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY COMMITTING APPELLANT TO CYA

A brief review of the case law regarding the discretion of the court to commit a juvenile to CYA presents the following principles. A decision to commit a minor to CYA is within the discretion of the committing court and will be reversed only for abuse of discretion. (In re Clarence B. (1974) 37 Cal.App.3d 676, 682, 112 Cal.Rptr. 474.) A reviewing court must indulge in all reasonable inferences to support the findings of the juvenile court, and such findings will not be disturbed on appeal when supported by substantial evidence. (In re Jose P. (1980) 101 Cal.App.3d 52, 58, 161 Cal.Rptr. 400; In re Richard W. (1979) 91 Cal.App.3d 960, 984, 155 Cal.Rptr. 11; In re Willy L. (1976) 56 Cal.App.3d 256, 265, 128 Cal.Rptr. 592.) The unavailability of suitable alternatives, without more, does not justify the commitment of a nondelinquent or marginally delinquent child to an institution primarily designed for the incarceration and discipline of serious offenders. (In re Aline D. (1975) 14 Cal.3d 557, 567, 121 Cal.Rptr. 816, 536 P.2d 65.) Less restrictive local placements need not be exhausted in every case. “(T)he circumstances in a particular case may well suggest the desirability of a Youth Authority commitment despite the availability of such alternative dispositions as placement in a county camp or ranch ” In re John H. (1978) 21 Cal.3d 18, 27, 145 Cal.Rptr. 357, 577 P.2d 177.)

Prior to pronouncing disposition, the juvenile court was aware of the numerous serious offenses involved in the current petitions, including appellant's aggressive and violent assault on a supervisor at the detention hall. The minor was 15 years of age and enrolled in the seventh grade. He showed little interest in school. His attendance was very poor and he had failing grades. The school principal indicated that the minor's mother was uncooperative and that she had stated that appellant was beyond her control. Prior to the instant offenses a petition was filed in 1975 in juvenile court charging the appellant with petty theft and trespass. The minor admitted the petty theft and the trespass was dismissed. The ultimate disposition was dismissal of the petition.

Rule 1391(b)(1), California Rules of Court, provides guidance, by analogy, since the section deals with modifications of juvenile court orders, as to what is considered a “more” or “less” restrictive placement. Alternatives in ascending order of restrictiveness are listed as: “(a) Placement in the home of the person entitled to legal custody; (P) (b) Placement in the home of a relative or friend; (P) (c) Placement in a foster home; (P) (d) Commitment to a private institution; (P) (e) Commitment to a county institution; (P) (f) Commitment to the Youth Authority.” Under this rule's guidance, it would appear that appellant, by his conduct at the county juvenile facility, had ruled out all of the less restrictive alternatives.

Appellant had appeared before juvenile court previously though disposition was by dismissal. He had achieved a degree of criminal sophistication in the course of his unlawful activity. He had displayed serious aggressive and assaultive tendencies while engaged in a violent escape. As the district attorney noted, if appellant managed to escape from the county's most secure juvenile facility, it was not likely appellant could be maintained at the Robert K. Meyers Youth Center, which did not even have a fence.

In the order of the court issued December 13, 1978, the court found “that the Court is fully satisfied that the mental and physical condition and qualifications of the minor are such as to render it probable that the minor will be benefitted (sic) by the treatment and training as offered by the California Youth Authority.” We concur in that finding.

APPELLANT IS ENTITLED TO CREDIT FOR THE TIME WHICH HE SPENT IN JUVENILE HALL PRIOR TO HIS COMMITMENT TO CYA

The issue concerning entitlement to credit for predisposition time served in custody was disposed of in the case of In re Eric J. (1979) 25 Cal.3d 522, 536, 159 Cal.Rptr. 317, 601 P.2d 549, which held that a minor is entitled to credit against his term of confinement for any time actually in custody prior to disposition. Such credit is deducted from any time which the minor is required to serve in physical custody pursuant to the dispositional order. (Ibid. ; Welf. & Inst.Code, s 726; Pen.Code, s 2900.5.)

APPELLANT IS NOT ENTITLED TO CONDUCT CREDITS FOR PREDISPOSITION CONFINEMENT

Appellant contends that he is entitled to good-time/work-time credits (conduct credits) for predisposition confinement in juvenile hall. Respondent contends that appellant is not entitled to predisposition conduct credits.

Welfare and Institutions Code section 726, subdivision (c), 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.”

Appellant relies on In re Maurice S. (1979) 90 Cal.App.3d 190, 153 Cal.Rptr. 31, which held that equal protection required that a juvenile committed to CYA receive credit against his term of confinement for predisposition time actually spent in custody and for conduct credits for the same period. Maurice S. did not discuss section 726's specific exclusion of conduct credits and did not distinguish between conduct credits and credits for time actually confined.

Maurice S. based its equal protection analysis on People v. Olivas (1976) 17 Cal.3d 236, 131 Cal.Rptr. 55, 551 P.2d 375 which invalidated a statute which permitted youthful misdemeanants to be committed to CYA for a term potentially longer than the maximum jail term which a person over age 21 might have received for the same crime. The premise of Olivas was that youthful misdemeanants prosecuted and convicted as adults in adult courts and adults so prosecuted and convicted are similarly situated.

Maurice S. went beyond Olivas to the premise that juveniles adjudged wards and committed to CYA were, likewise, similarly situated vis-a-vis adults convicted in criminal courts and sentenced to prison. However, In re Eric J., supra, 25 Cal.3d at pages 528-533, 159 Cal.Rptr. 317, 601 P.2d 549, flatly rejects this latter premise in upholding section 726's automatic selection of the longest term imposable on an adult for the same offense without the necessity of finding the aggravating circumstances which adult criminal procedure requires. As discussed below, Eric J.‘s holding that juveniles are entitled to credit for actual time spent in predisposition confinement relies on statutory interpretation, not equal protection.

While Maurice S. has thus been eroded, two recent decisions of the Fourth District, Division One, In re Maurice H. (1980) 107 Cal.App.3d 305, 166 Cal.Rptr. 213 and In re Eugene R. (1980) 107 Cal.App.3d 605, 166 Cal.Rptr. 219, have awarded predisposition conduct credits based on a “merger” of Eric J. and People v. Sage (1980) 26 Cal.3d 498, modified 27 Cal.3d 144a, 165 Cal.Rptr. 280, 611 P.2d 874 (as modified):

“In connection with Maurice's good time/work time credit claim based on equal protection principles in combination with the credit accorded to adults under section 4019, in People v. Sage (1980) 26 Cal.3d 498, at pages 501, 503 and 505 to 507, 165 Cal.Rptr. 280, 611 P.2d 874 , the court held that adult convicted felons, although not statutorily entitled to presentence ‘conduct’ credit under section 4019, are entitled to such credit under equal protection principles. Accordingly, by merging together the holdings of Sage and In re Eric J., supra, 25 Cal.3d 522, at page 536, 159 Cal.Rptr. 317, 601 P.2d 549, a juvenile is entitled to conduct credit, if earned, for presentence confinement. 4” (In re Maurice H., supra, at pp. 314-15, 166 Cal.Rptr. 213.)

Footnote 4 to this passage in Maurice H. states:

“ 4 The basis of the precommitment credit holding of In re Eric J., supra, was a construction of the portion of Welfare and Institutions Code section 726, subdivision (c), stating a juvenile ‘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 same offenses. An adult's ‘maximum term’ would be calculated after application of the Penal Code section 2900.5 presentence credit. Thus, in order to keep the juvenile's term within the same maximum, it is necessary to apply a similar credit to the juvenile's term (id., at pp. 535-536 (159 Cal.Rptr. 317, 601 P.2d 549)). The same interpretive approach makes the Penal Code section 4019 type conduct credit available to persons such as Maurice by the juvenile court.” (In re Maurice H., supra, at p. 315, fn. 4, 166 Cal.Rptr. 213.)

Similarly, Eugene R. applied a “merger” analysis in determining that a juvenile was entitled to behavioral credit for presentence commitment. For the reasons stated below, we cannot accept the syllogistic reasoning of Maurice H. and Eugene R..

In Sage, the Supreme Court held that equal protection required the award of conduct credits to felons for presentence confinement, to rectify a disparity created by Penal Code section 2931's award of conduct credits for prison confinement:

“Under section 4019, a pretrial detainee eventually convicted of a misdemeanor and sentenced to county jail, hereinafter referred to as a ‘detainee/misdemeanant,’ receives conduct credit against that sentence for his presentence jail time. Under section 2931, a defendant who makes bail or is released on his own recognizance, then is tried, convicted of a felony and sentenced to state prison receives conduct credit against his full sentence. Only the presentence detainee eventually sentenced to prison, the ‘detainee/felon,’ does not receive conduct credit against his full sentence, because he is denied conduct credit for his presentence confinement. It is the distinction between the detainee/felon and the felon who serves no presentence time that raises equal protection problems.” (People v. Sage, supra, 26 Cal.3d at p. 505, 165 Cal.Rptr. 280, 611 P.2d 874.)

It should be noted that the denial of predisposition conduct credits creates no parallel disparity in the juvenile system because section 726 expressly states that the minor's maximum term is not to be reduced by conduct credits “pursuant to Sections 2930, 2931, and 2932 of the Penal Code,” i. e., postdisposition conduct credits.

Conversely, Maurice H.‘s award of predisposition conduct credits combined with the statutory denial of postdisposition conduct credits¹ does create a disparity opposite to that condemned in Sage : The detainee/CYA committee has his maximum term reduced by conduct credits while the nondetainee/CYA committee does not.

In Eric J., the Supreme Court held that a minor is entitled to credit for actual predisposition confinement. Previous appellate decisions had split three ways on the issue. In re Leonard R. (1977) 76 Cal.App.3d 100, 142 Cal.Rptr. 632, held that a minor was not entitled to such credit under Penal Code section 2900.5, which, by its very terms, did not apply to juvenile commitments. The court held that no equal protection violation existed.

Maurice S. -discussed above-and the appellate court opinion in Eric J. held that equal protection did require credit for actual time spent. In re Harm R. (1979) 88 Cal.App.3d 438, 152 Cal.Rptr. 167 by-passed the equal protection controversy by interpreting section 726 to require such credits. Eric J. took the same tack:

“In support of Harm R.‘s interpretation of section 726, subdivision (c), it may be noted the statute expressly states the minor's maximum term is not to be reduced by ‘time for good behavior or participation pursuant to Sections 2930, 2931, and 2932 of the Penal Code,’ suggesting that precommitment credit would also have been expressly excluded, had that been the Legislature's intent.

“Although the question of legislative intent is not free from doubt, we conclude that, in order to carry out the mandate of section 726, subdivision (c), that a juvenile ‘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 same offenses, appellant must be given precommitment credit for the 46 days he was detained in juvenile hall pending resolution of these charges.” (In re Eric J., supra, 25 Cal.3d at p. 536, 159 Cal.Rptr. 317, 601 P.2d 549.)

It is important to note that, contrary to what Maurice H. suggests, Eric J. does not hold that a juvenile's term must be “kept within the same maximum” which an adult could receive for the same offense. An adult's maximum is reduced by postsentence conduct credits; a juvenile's is not. Indeed, this express exclusion was critical to the Supreme Court's legislative intent analysis in Eric J.

This legislative intent analysis does not apply to the question of predisposition conduct credits. True, section 726 expressly excludes postdisposition credits, but the failure to also expressly exclude predisposition conduct credits creates no negative inference because such credits did not exist for detainee/felons when the statute was written. Not until People v. Sage, were detainee/felons entitled to presentence conduct credits.

In Eric J., the question of legislative intent was “not free from doubt.” However, the Supreme Court resolved the doubt in favor of actual time credits. In the instant case, the legislative intent is clear. As Eric J. recognizes, the legislature did not want a juvenile's CYA maximum commitment reduced by postdisposition conduct credits granted an adult felon. It follows that the legislature did not want a juvenile's maximum CYA commitment reduced by predisposition conduct credits denied an adult felon.

Otherwise stated, the legislature had already determined that a detainee/felon's maximum prison term would not be reduced for presentence conduct credits. There was no need to specifically exclude such credits in section 726, since the detainee/felon did not get them in the first place.

Moreover, as noted above, the award of conduct credits for predisposition commitment when combined with a denial of such credits for postdisposition commitment would create an absurd disparity which favored the detainee/CYA committee over the nondetainee/CYA committee.

People v. Austin (1980) 111 Cal.App.3d 148, 168 Cal.Rptr. 511 is inapposite. Austin holds that a youthful offender tried in criminal court as an adult but committed to CYA rather than prison is entitled on equal protection grounds to conduct credits for predisposition confinement in county jail and for time spent in CYA.

Austin, like Olivas, was similarly situated vis-a-vis adults sentenced to prison. Appellant, as Eric J. makes clear, is not. This being the case, whether denial of conduct credits is necessary to achieve the rehabilitative plan of CYA need not be considered.

Appellant is not entitled to predisposition conduct credits.

The case is remanded to the trial court for the sole purpose of determining the credit to which appellant is entitled for actual time spent in custody prior to the CYA commitment.² In all other respects, the judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.  In light of Eric J., we perceive no equal protection problems in the statutory denial of conduct credits for time spent in CYA.

2.  The trial court shall prepare an amended commitment to the Youth Authority which reflects the actual time credits so determined and shall forward same to the Youth Authority, which shall file same.

PIERSON, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Counsel.

GEO. A. BROWN, P. J., and THOMPSON, ** J., concur.